This is an agreement between Streamyo, LLC. ("Streamyo") and You. What we will refer to after this as the "Agreement" includes this document headed "Streamyo Member Agreement" and also any policies, guidelines and amendments that may be incorporated into this Streamyo Member Agreement or presented to You from time to time. This Agreement describes the terms and conditions on which Streamyo offers Your participation in Streamyo's video distribution and video sales program and related services (the "Streamyo Partner Program" as further described below). "You" (and "Your", as applicable) means the person or entity identified in the registration form submitted.
PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement sets forth the legally binding terms and conditions for Your participation in the Streamyo Partner Program. By registering, clicking "I Agree" or otherwise participating in the Streamyo Partner Program, You represent to Streamyo that You are at least eighteen (18) years of age or otherwise capable of entering into and performing legal agreements, and that You agree to be bound by the following terms and conditions. If You register on behalf of a business, You represent to Streamyo that You have the authority to bind that business and Your acceptance of this Agreement will be treated as acceptance by that business. In that event, "You" and "Your" will refer to that business in this Agreement. If You do not accept this Agreement in full, please do not register for or participate in the Streamyo Partner Program.
Table of Contents
- The Streamyo Network
- The Streamyo Partner Program
- Registration
- Policies
- Modifications
- Participation
- Participation at Your Own Risk
- Revenue and Payment Terms
- Privacy
- Proprietary Rights & Licenses
- Action Fraud
- Adult Content
- Copyright Infringement
- Term and Termination
- Notifications
- Confidential Information
- Representation & Warranties
- Links
- Indemnity
- No Guarantees; Warranty Disclaimer
- LIMITATION OF LIABILITY
- General
With this in mind, You agree to and acknowledge the following:
1. The Streamyo Network
Streamyo develops and maintains a network of video content creators. Streamyo also owns related technologies that facilitate the distribution of video content from participating content creators and that provide a pay per view platform for consumers to view the content provided by the content providers. This network and technology are referred to after this as the "Streamyo Network." Streamyo makes, or may make, the Streamyo Network available to the public through one or more channels. These channels include but are not limited to the following:
(a) Online, via the Streamyo website (currently located at "http://www.Streamyo.com") (the "Streamyo Site") and/or via the websites, software applications, plug-ins, blogs, media search engines, toolbars, games, components or downloadable code, and other viral online mediums such as peer-to-peer networks, file sharing, instant messaging and email of Streamyo and Streamyo's distribution partners. All of the channels mentioned above in this section 1(a) are referred to after this collectively as "Online Distribution";
(b) Broadcast, via cable, satellite and digital television, video, laser disc, DVD, CD-Rom and motion picture distribution, whether over-the-air, wireless or in the foregoing hard-copy media (collectively, "Broadcast Distribution"); and
(c) Distribution via mobile phones and other handheld devices ("Mobile Distribution").
All distribution channels, including but not limited to (a), (b) and (c), are referred to collectively as the "Streamyo Affiliate Network."
2. The Streamyo Partner Program
The Streamyo Network, the Streamyo Site, the Streamyo Affiliate Network and related products and services are together referred to after this as the "Streamyo Products". The Streamyo Partner Program permits You to participate in, use and/or obtain access to the Streamyo Products in a variety of ways. These include but are not limited to the following:
(a) Participation as a content creator, by creating and submitting video content for distribution and sale in the Streamyo Affiliate Network. After this, we refer to anyone who participates in this way as an "Producer"
(b) Participation as a distribution partner, by distributing video content and other products and services, in the Streamyo Affiliate Network, pursuant to the terms of this Agreement. After this, we refer to anyone who participates in this way as a "Affiliate".
(c) Participation as a member of Streamyo, by purchasing and watching videos, submitting reviews, communicating with other Streamyo Partner Program members and sharing or submitting other information. After this, we refer to anyone who participates in this way as a "Community Member"
(d) Access to online management services relating to Your websites, video content and advertising campaigns. After this, we refer to such use as "Management Services."
(e) Access to certain Streamyo applications, software and related services, such as access to Streamyo's API (collectively, the "Applications").
(f) Access to trial features, products and services ("Trial Features").
We will refer to any participation in the Streamyo Partner Program and any use of or access to the Streamyo Products as "Participation" or to "Participate." (Participation includes but is not limited to items (a) through (g) above.) Your use of or access to certain features of the Streamyo Partner Program may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and any additional terms and conditions of use posted for a specific feature, those additional terms and conditions shall have precedence with respect to Your use of or access to that feature.
3. Registration
To Participate
You must register online with Streamyo at the Streamyo Site, or through the websites of a Streamyo third party affiliate or partner, and create a unique, password-protected account ("Account"). You will be responsible for safeguarding Your password. You also take full responsibility for any actions under Your password and Account, whether authorized by You or not. You are responsible for keeping Your Account information current. You acknowledge and agree that Streamyo will have no responsibility or liability, directly or indirectly, for:
(i) the availability of the external websites or resources of such third party affiliates or partners;
(ii) the acts or omissions of, or any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on, such third party affiliates or partners, regarding Your Account; or
(iii) failure to deliver notices or payments that result from inaccurate Account information.
4. Policies
Your Participation is subject to all applicable Streamyo specification guidelines, requirements and policies which Streamyo may provide from time to time. These include but are not limited to the Copyright Policy (http://streamyo.com/copyright), the Privacy Policy (http://Streamyo.com/privacy) and any specification guidelines (together, the "Policies"). You agree to comply with the Policies to enable, as applicable, proper delivery, display, tracking and reporting of actions related to the Streamyo Partner Program.
5. Modifications
Streamyo, at any time and from time to time, may modify this Agreement and the Policies, or may modify, suspend or discontinue, temporarily or permanently, the Streamyo Products or the Streamyo Partner Program (or any parts thereof). Modifications to this Agreement and Policies will be posted on the Streamyo Site or made in compliance with any notice requirements set forth in this Agreement. Modifications to the Streamyo Products or the Streamyo Partner Program will be effective upon posting to the Streamyo Site. You agree that Streamyo shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Policies, the Streamyo Products or the Streamyo Partner Program. By continuing to Participate after Streamyo has posted any such modifications or provided any required notices, You agree to be bound by the modifications. Please review this Agreement and the Policies regularly so that You will be apprised of any modifications. If any modification is not acceptable to You, Your only recourse is to cease Participation.
6. Participation
At the time of registration, You will be given the opportunity to select one or more features of the Streamyo Partner Program in which You wish to Participate (for example, as a Producer or a Community Member). To remain eligible for Participation, You must at all times comply with the terms and conditions of this Agreement and all Policies. Streamyo reserves the right to refuse Participation to any applicant or participant at any time in its sole discretion.
(a) Producers. If You Participate as a Producer, You are solely responsible for all video content You transmit or submit to Streamyo or through the Streamyo Partner Program, whether created by or for You, including but not limited to graphics, music, sound, images, files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material (collectively, "Video Content"). Streamyo disclaims all liability relating to Your Video Content. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit Video Content that contains any pornographic, infringing, hate-related, violent or illegal content.
In connection with Streamyo's marketing, distribution and provision of the Streamyo Partner Program as contemplated herein, You permit Streamyo, as further described in Section 10, to:
• - host, index and cache Your Video Content;
• - tag Your Video Content with information that will be used by Streamyo to identity it as Your Video Content and assist Streamyo in properly tracking and calculating any revenue amounts that You may earn;
• - distribute, or have distributed, Your Video Content in the Streamyo Affiliate Network; and
• - engage in such further actions regarding Your Video Content as may be necessary or appropriate in order to effect the purposes of the Streamyo Partner Program. At the time of registration, You may be given the opportunity to select one or more supplemental distribution channels (that is, in addition to Online Distribution), for example, Broadcast Distribution and Mobile Distribution, and associated revenue structure (if any), in accordance with which Your Video Content may be distributed in the Streamyo Affiliate Network. You agree and accept that Streamyo or its third party distribution partners (for example, internet service providers, television broadcasting companies, mobile phone carriers, other service providers, licensees and the like) (collectively, the "Third Party Service Providers"), may add or remove any or all distribution channels available to You at any time.
Streamyo may, in its sole discretion:
• reject, suspend access to or remove any of Your Video Content from the Streamyo Network at any time that Streamyo deems it unsuitable for the Streamyo Network or for distribution in the Streamyo Affiliate Network, including, without limitation, any single-frame Video Content or Video Content that is less than four (4) seconds in duration; and
• modify any meta data You submit with Your Video Content, including without limitation meta tags, age rating, descriptive language, search terms, category and keyword modifiers. Streamyo shall have no liability for taking such actions. You agree and accept that Streamyo does not guarantee that Your Video Content will be distributed on any part of the Streamyo Affiliate Network and that distribution may be subject to acceptance by any of the Third Party Service Providers.
During the Term, You may request that Streamyo remove any or all of Your Video Content from the Streamyo Site. Upon such request, Streamyo will remove such Video Content and Your right to receive compensation, if any, for the removed Video Content will automatically terminate. In accordance with Section 8 ("Revenue and Payment Terms") below, Streamyo will pay You all undisputed amounts for the removed Video Content, if any, due to You within ninety (90) days from the last day of the month in which such request to remove occurs. Upon such a request to remove Video Content, Streamyo will use commercially reasonable efforts to ensure the Video Content is removed from the Streamyo Site within seventy-two (72) hours following Your request. However, You acknowledge and agree that Streamyo shall have no obligation to attempt to remove from distribution:
• (i) any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium; or
• (ii) any of Your Video Content that is distributed by Affiliates in the Streamyo Affiliate Network or their end users without monetary compensation or commercial purposes as set forth in Section 10(f) ("Producers: Your Irrevocable Non-Commercial Distribution License").
In the event that Streamyo fails to remove such requested Video Content from the Streamyo Site within seventy-two (72) hours after Your request for removal, Streamyo shall not be liable to You for damages or charges of any kind in an amount greater than ten dollars ($10). For the avoidance of doubt, Streamyo cannot, and has no obligation to, remove any of Your Video Content that has been distributed through the Streamyo Affiliate Network, and the Creative Commons BY-NC-ND License (defined below)that You have granted in Section 10(f) ("Producers: Your Irrevocable Non-Commercial Distribution License") herein shall remain in effect for this purpose only.
(b) Affiliates. If You Participate as a Affiliate, Streamyo offers a selection of Affiliate tools to let You display and distribute the Video Content and Streamyo offers and makes available to You other materials through the Streamyo Partner Program for Online Distribution to Your end users, in accordance with any specifications provided or made available to You by Streamyo, as follows:
• You may select the embed code option for certain Content, and display and distribute such Video Content and Ads in accordance with Section 10(i) ("Affiliates: Your Revocable Right to Commercially Distribute Streamyo Video Content") and Section 10(j) ("Affiliates: Your Right to Distribute Other Materials"), provided that You may not modify or alter such Video Content and Ads in any way other than as expressly permitted by such Sections; and
• You may stream, view, "frame," "mirror" or otherwise copy portions of the Streamyo site in accordance with Section 10(k) ("Community Members: Your License to Streamyo"), provided that You may not modify or alter the Streamyo site, any Streamyo technology, any Video Content and Ads or any materials available on the Streamyo site in any way other than as expressly permitted by Section 10(k).
Streamyo reserves the right, in its sole and absolute discretion, for any reason or no reason, to revoke Your license to "frame," "mirror" or otherwise copy portions of the Site, the Video Content and Ads and Streamyo content at any time, effective immediately once we give You notice of such revocation. You may not display or distribute Content by any means other than as expressly permitted in writing by Streamyo. If You wish to display and distribute Content via Broadcast Distribution or Mobile Distribution, You must first obtain Streamyo's prior written approval.
At the time of registration, You may be given the opportunity to designate the Online Distribution locations (for example, the websites, blogs and peer-to-peer networks) and associated revenue structure (if any) by which means You will distribute Video Content (any such means, collectively, "Affiliate Sites"). Streamyo disclaims all liability relating to Your Affiliate Sites. You are solely responsible for all maintenance and operation of Your Affiliate Sites, and any materials or content therein. As more fully set forth in Section 17 ("Representations and Warranties"), You may not display or distribute Video Content on any Affiliate Sites that contain any pornographic, infringing, hate-related, violent or illegal content. You agree to comply with any specifications provided by Streamyo to:
(i) enable proper use, delivery, display and distribution of the Video Content on Your Affiliate Sites; and
(ii) to assist Streamyo in properly tracking and calculating any revenue amounts that You may earn. You will use Your good faith efforts to provide Streamyo with prior notice when You anticipate that Your Affiliate Site end user traffic directed to the Streamyo site will increase by twenty-five percent (25%) or more at any given time.
You agree and accept that Streamyo, upon request of the applicable Producers or in its sole discretion, may add or remove from the Streamyo Site any or all Video Content available to You at any time. Your right to receive compensation, if any, for Your continued distribution of such Video Content will automatically terminate. In accordance with Section 8 ("Revenue and Payment Terms") below, Streamyo will pay You all undisputed amounts for the removed Ads, if any, due to You within ninety (90) days from the last day of the month in which such request to remove occurs.
You agree that You will not:
• modify any specifications, technology or application codes, including without limitation Streamyo's Pay Per View technology, provided to You by Streamyo or as embedded in the Video Content in any way, unless expressly authorized in writing by Streamyo;
• intersperse any content between Video Content or otherwise provide anything other than a direct link from Video Content to an Ad or from an Ad to an Advertiser Page;
• disrupt, intercept or redirect an end user away from any Ad links or Advertiser Page or provide a version of the Advertiser Page that is different from the page an end user would access by going directly to the Advertiser Page; or
• frame, minimize, remove or otherwise inhibit the full and complete display of any video or Advertiser Page.
(c) Community Members. If You register to Participate, You will automatically become a Community Member. As a Community Member, You may communicate with Streamyo and other Account holders, post or publish comments or rating features regarding Video Content and Ads, Streamyo Products or the Streamyo Partner Program in, as may be made available at Streamyo's complete discretion, a discussion group, chat area, bulletin board, feedback area, news group, email functionality or other communication feature. All such communications are referred to after this as "Member Comments". You are solely responsible for all Member Comments You transmit or submit to Streamyo or through the Streamyo Partner Program, whether created by or for You, including but not limited to websites and content proximately reachable from such Member Comments. Streamyo disclaims all liability relating to Your Member Comments. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit any Member Comments that contain any sexually suggestive, pornographic, infringing, hate-related, violent or illegal content.
(d) Applications. Your access to and use of certain Applications and accompanying documentation, including but not limited to Streamyo's API or any software made available to You to assist You in uploading Your Video Content, will be subject to the terms of separate license agreements between You and Streamyo. You will be required to read and indicate Your agreement to such separate terms prior to installing or using such Applications.
(e) Trial Features. Some Trial Features may be made available on an as-is basis only, which will be marked as such. Your use of the Trial Features is at Your own risk. All information relating to the Trial Features will be treated as "confidential" in accordance with Section 16 ("Confidential Information").
7. Participation at Your Own Risk
Your Participation is at Your own risk. Although the Streamyo Partner Program enables users to connect and share Video Content and Member Comments with one another and with end users or viewers, Streamyo has no responsibility to control of monitor any information or exchanges between or among users. Streamyo does not control the Video Content, Ads and Member Comments made available through the Streamyo Products. Some people may find Video Content, Ads and Member Comments objectionable, inappropriate or offensive. Streamyo does not control or guarantee, nor is Streamyo responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Video Content, Ads and Member Comments. Streamyo assumes no responsibility for monitoring any Video Content, Ads or Member Comments or conduct during Participation. If Streamyo chooses, at any time in its sole discretion, to monitor (in whole or in part) Video Content, Ads, Member Comments or conduct during Participation, Streamyo nonetheless assumes no responsibility for Video Content, Ads and Member Comments, no obligation to modify or remove any Video Content, Ads or Member Comments and no responsibility for conduct during Participation. You agree that Streamyo has no responsibility or liability for the deletion or failure to store, maintain or transmit any Video Content, Ads or Member Comments.
8. Revenue and Payment Terms
(a) Payments Due to You. You may be able to generate revenue through Participation as a Producer or a Affiliate, through valid, end user activity relating to Video Content and Ads. Such activity could include for example, without limitation, full Video Content views or clicks on an Ad, conversion of an Ad click to a sale, or delivery of an Ad impression displayed in connection with Video Content (collectively, "Advertising Actions").
Producer Revenue. Subject to Your compliance with the terms and conditions of this Agreement, and depending on the distribution channels (and associated revenue structure, if any) made available to and selected by You, Streamyo will pay You fifty percent (50%) of the gross revenue payable from each purchase of Producer content. You understand and agree in the event Your Video Content is distributed (i) by certain Third Party Service Providers and Affiliates via Broadcast Distribution or Mobile Distribution; or (ii) with non-commercial sponsorship or Ads, such distribution may not generate revenue for You.
Affiliate Revenue. Subject to Your compliance with the terms and conditions of this Agreement, and depending on the distribution channels (and associated revenue structure, if any) made available to and selected by You, Streamyo will pay You twenty percent (20%) of the revenue payable to Streamyo from the content purchased through your network and Third Party Service Providers, less any third party affiliate acquisition fees, as a result of valid Advertising Actions generated in connection with Video Content and Ads distributed by You through Your Affiliate Sites. You understand and agree that Your distribution of Video Content (i) via certain Broadcast Distribution or Mobile Distribution channels; or (ii) that contains non-commercial sponsorship or Ads, may not generate Affiliate revenue for You.
(b) Payments Due Streamyo. The method of calculating fees You may owe Streamyo will be set forth in any Advertiser Agreement (if necessary) between You and Streamyo.
Other Fees. Streamyo reserves the right to charge for certain features of the Streamyo Partner Program, such as Management Services or Applications and to change its fees from time to time in its discretion.
(c) Payment Terms. Amounts due to You, if any, in connection with Your Participation as a Producer or Affiliate, will be determined solely by Streamyo based on purchases of video data and Advertising Action data—regarding impressions, clicks, conversions and other applicable metrics—collected by and/or supplied to Streamyo. Payments earned as a result of valid Advertising Actions will accrue and be posted to Your Account. All payments will be made in U.S. Dollars. Generally, accrued payments will be available for withdrawal or transfer thirty (30) days after the end of the calendar month in which they accrued. For example, revenue generated as a result of Advertising Actions on June 30 and July 1 will be available for withdrawal on July 30 and August 30, respectively. Streamyo will not be liable for damages resulting from any failure to post payments to Your Account within such thirty (30) day period. Notwithstanding the foregoing, Streamyo shall make no payments until such accrued payments total at least twenty dollars ($20). You will not be entitled to receive interest on any Account payments. Except as contemplated by subsection (d) ("Exceptions") below, payments will remain in Your Account until: (x) You transfer such amounts to a PayPal Account or other payment system acceptable to Streamyo; (y) You direct Streamyo in writing to distribute such payments to a designated PayPal Account or other payment system acceptable to Streamyo, or (z) Streamyo exercises its options under Section 14 ("Term and Termination") below. If You dispute Streamyo's payments made to You under this Agreement, You must notify Streamyo in writing within thirty (30) days of Streamyo depositing such payment to Your Account. Failure to notify Streamyo in this manner will result in Your waiver of any claim relating to such dispute. Streamyo will use reasonable efforts to resolve any such dispute in good faith, but Streamyo's resolution will be final. You are responsible for any and all applicable taxes or charges imposed by any government entity in connection with Your Participation. Streamyo may change its pricing and/or payment structure at any time, upon thirty (30) days' prior notice of any such change (unless Streamyo is required by law to provide more than thirty (30) days notice). All modified payment terms shall be effective thirty (30) days after notice has been provided to You by Streamyo (or such other time period specified in such notice). If any such modified payment terms are not acceptable to You, Your only recourse is to cease Participation. By continuing to Participate following notice of any modified payment terms as set forth herein, You accept and agree to be bound by such modified payment terms. For the purposes of checking credit, effecting payment and/or servicing Your Account, Streamyo may share with third parties, such as payment processors and/or credit agencies, any credit card and related payment information that You provide.
(d) Exceptions. Streamyo will have no obligation to pay any amounts, and is permitted to deduct or withhold any amounts from or posted to Your Account, determined or reasonably suspected by Streamyo in its sole discretion to have resulted from: (i) Action Fraud (as defined in Section 11 ("Action Fraud") below), including without limitation through any clicks originating from Your IP addresses or computers under Your control, solicited by payment of money, false representation or request for end users to click on Ads, or Actions co-mingled with a significant number of invalid Advertising Actions; (ii) Advertising Actions originating on Video Content that breaches this Agreement, including but not limited to the restrictions set forth in Section 12 ("Adult Content") and Section 13 ("Copyright Infringement"); or (iii) fraudulent, misleading or false activities. Streamyo reserves the right to withhold or deduct payment, if applicable, or suspend or otherwise disable Your Account, pending Streamyo's reasonable investigation of any of the foregoing or any breach of this Agreement by You.
9. Privacy
Participation is governed by the Streamyo Privacy Policy located at http://Streamyo.com/privacy, which is incorporated into this Agreement by reference. Furthermore, by Participating, You understand that when You (or Your end users if You are an Affiliate) view or interact with Streamyo Products and features of the Streamyo Partner Program, Streamyo may collect (and You may provide to Streamyo) information that is specific to how You (or Your end users) access and use the Internet as well as how You (or Your end users) view and/or interact with Streamyo Products ("Access Information"). Access Information may include, but is not limited to, an IP address, the website a user is logged onto, the geographic location of the IP address the user is using to access the Internet, the type of browser used, which and how many web pages have been viewed by the user, search terms used, referring/exit pages, platform type and date/time information. This information is anonymous and does not personally identify a user. Streamyo uses Access Information for the purpose of monitoring delivery and distribution of the Video Content and Ads, improving Ad targeting, delivery and reporting, improving the Streamyo Products and the Streamyo Partner Program and measuring their effectiveness with users. Access Information may be shared with Streamyo's Third Party Services Providers, affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
10. Proprietary Rights & Licenses
(a) Streamyo's Ownership Rights. Streamyo and its licensors own all right, title and interest, including without limitation all worldwide intellectual property rights in the Streamyo Products and the Streamyo Partner Program, and all such rights to all derivative works or enhancements of, in and to, or relating to, the Streamyo Products and the Streamyo Partner Program. By entering into this Agreement or by Your Participation, You will not acquire any intellectual property or similar rights in the Streamyo Products, the Streamyo Partner Program or related products and services. You agree You will not (i) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Streamyo Products, the Streamyo Partner Program or related products and services; or (ii) use Streamyo's name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without Streamyo's prior written consent.
(b) Your Ownership Rights. Subject to the licenses You are granting in this Agreement, You retain all right, title and interest, including without limitation all worldwide intellectual property rights, in and to Your Video Content that is submitted, posted or displayed by You on or through the Streamyo Products and Streamyo Partner Program. Streamyo shall not acquire any right, title or interest in or to such Video Content, except as provided herein. Any rights not granted by You herein are deemed retained by You. As more fully described in Section 14 ("Term and Termination"), You have the right to terminate this Agreement and revoke certain licenses You are granting in this Agreement, with respect to all Video Content You provide or with respect to particular works You provide. If You choose to revoke any of Your revocable licenses, Streamyo will use commercially reasonable efforts to remove Your Video Content from the Streamyo Site reasonably promptly upon receipt of Your notice of revocation and will make reasonable efforts to notify authorized Affiliates (i.e., those distributing Your Video Content with Ads) for whom it has current and up-to-date information. You acknowledge that You are aware that Streamyo has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that Streamyo assumes no responsibility for controlling or monitoring such intellectual property rights. In addition, Streamyo is not responsible for enforcing Your intellectual property or for suing or taking other legal action against infringers or against Affiliates who fail to cease using Your Video Content upon revocation. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. Streamyo may, at its discretion, choose to assist You in connection with protecting or enforcing Your intellectual property rights in a particular instance; in such event, this does not mean that Streamyo has an obligation to do so in any other instance and this does not mean that Streamyo has an obligation to effectively protect or enforce Your intellectual property rights.
(c) Streamyo's Trademark License to You. During the term of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, You will have the right to use the trade names, trademarks, logos and designations in or associated with the Streamyo Network (the "Streamyo Marks") solely for purposes of identifying Streamyo and solely in connection with Your permitted activities under this Agreement. You agree that the Streamyo Marks and all associated goodwill are and will remain the sole property of Streamyo, that any goodwill generated as a result of Your licensed use of Streamyo Marks belongs exclusively to Streamyo and inures solely to the benefit of Streamyo, and that Your use of Streamyo Marks is subject to Streamyo's control of the quality of any products or services with respect to which You may be authorized to use Streamyo Marks.
(d) Producers: Your Revocable Limited License to Streamyo. In connection with Your Participation as a Producer, and solely insofar as such supplemental distribution channels (i.e., Broadcast Distribution and/or Mobile Distribution) are made available to and selected by You, in order to allow Streamyo to distribute Your Video Content in the Streamyo Affiliate Network through Broadcast Distribution and/or Mobile Distribution as selected by You, You hereby grant (or warrant that the owner of such rights has expressly granted) to Streamyo a worldwide, revocable, non-exclusive, sublicensable, limited right and license to use, reproduce, modify and adapt (solely to permit Streamyo to conform and adapt Your Video Content to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Video Content, Member Comments or materials You submit to Streamyo, in whole or in part, whether created by or for You, by any method, and in any and all media, whether currently existing or hereafter developed. You understand that Your revocable limited license to Streamyo includes Your grant to Streamyo of the right to create, display and distribute (as set forth more fully in the previous sentence) a derivative work based on Your Video Content, which derivative work is comprised solely of Your Video Content as adapted to include Streamyo's computer software, to identity Your submission as Your Video Content, to assist Streamyo in properly tracking and calculating any revenue amounts that You or Affiliates may earn, and to effect related functions. (After this we refer to the aforementioned derivative work as "Your Streamyo Video Content." Streamyo's rights, with respect to Your Streamyo Video Content, are limited to its rights set forth in this Agreement, and Streamyo expressly waives and disclaims, with respect to You, any other rights it might otherwise hold to Your Streamyo Video Content under copyright law. As more fully described in Section 14 ("Term and Termination"), this license will terminate: (i) with respect to any Video Content that You have requested be removed in accordance with Section 6(a) ("Participation (Producers)"); and (ii) upon termination of the Agreement in accordance with Section 14 ("Term and Termination").
(e) Producers: Your Revocable Online Commercial Distribution License. In connection with Your Participation as a Producer, in order to allow Streamyo and others to distribute Your Streamyo Video Content in the Streamyo Affiliate Network through Online Distribution, You hereby grant (or warrant that the owner of such rights has expressly granted) to Streamyo, Third Party Service Providers and Affiliates a limited, revocable right to use, reproduce, publicly perform, distribute and display Your Streamyo Video Content for monetary compensation or commercial purposes in the Streamyo Affiliate Network as contemplated by this Agreement and to engage in such further actions relating to and in connection with Your Video Content as may be necessary or appropriate in order to effect the purposes of the Streamyo Affiliate Network.
(f) Producers: Your Irrevocable Non-Commercial Distribution License. In connection with Your Participation as an Producer, You hereby grant (or warrant that the owner of such rights has expressly granted) to any persons or entities who want to use Your Streamyo Video Content in a manner not intended for commercial advantage or private monetary compensation, a right to use, reproduce, publicly perform, distribute and display Your Streamyo Video Content for non-commercial purposes pursuant to the terms and conditions of the Creative Commons "Attribution-NonCommercial-NoDerivs 2.5" license located at http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode (the "Creative Commons BY-NC-ND License"). Insofar as Streamyo holds any rights to Your Streamyo Video Content pursuant to Section 10(d) of this Agreement, Streamyo also grants the rights stated in this paragraph to such persons or entities pursuant to the Creative Commons BY-NC-ND License.
(g) Producers: Your Revocable Broadcast and Mobile Distribution License. In connection with Your Participation as a Producer, in order to allow Streamyo to distribute Your Video Content in the Streamyo Affiliate Network through Broadcast Distribution and Mobile Distribution, solely insofar as such distribution is made available to and selected by You, You hereby grant (or warrant that the owner of such rights has expressly granted) to Streamyo a worldwide, revocable, royalty-free, non-exclusive sublicensable right and license to: (i) use, reproduce, modify and adapt (solely to conform and adapt to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), reference, store, host, index and cache, and (ii) excerpt, publish, transmit, distribute, publicly perform, display in the Streamyo Affiliate Network through Broadcast Distribution and Mobile Distribution, in any form, medium or technology now known or later developed, Your Video Content or materials You submit to Streamyo, in whole or in part, whether created by or for You, by any method, and in any and all media, whether currently existing or hereafter developed, in connection with Streamyo's marketing, distribution and provision of the Streamyo Products and Streamyo Partner Program. This license gives Streamyo the right to display and distribute, or have displayed and distributed, Your Video Content via Broadcast Distribution and Mobile Distribution for no fee to the end user. Streamyo reserves the right to display Ads in connection with any Broadcast Distribution and Mobile Distribution of Your Video Content.
(h) Affiliates: Your Revocable Right to Commercially Distribute Streamyo Video Content. Subject to Your compliance with the terms and conditions of this Agreement, You have a limited, revocable, non-sublicensable right to use, reproduce, publicly perform, distribute and display for commercial purposes, solely via Online Distribution in the Streamyo Affiliate Network as contemplated by this Agreement, Streamyo Video Content made available to You by Streamyo, and to engage in such further actions relating to and in connection with such Streamyo Video Content as may be necessary or appropriate in order to effect the purposes of the Streamyo Affiliate Network. Upon termination of this Agreement or any individual Streamyo Video Content right granted hereunder, by Streamyo, an Producer or a Sponsor, Your rights to use and distribute such Streamyo Video Content for commercial purposes will immediately cease; however, Your rights to use, reproduce, publicly perform, distribute and display Streamyo Video Content for non-commercial purposes and without monetary compensation pursuant to the terms and conditions of the Creative Commons BY-NC-ND License will continue, so long as You adhere to the terms and conditions of the Creative Commons BY-NC-ND License. You may not display or distribute Video Content or Ads via Broadcast Distribution or Mobile Distribution unless You have first obtained Streamyo's express prior written approval to do so under a separate written agreement executed by both You and Streamyo.
(i) Affiliates: Your Right to Distribute Other Materials. Subject to Your compliance with the terms and conditions of this Agreement, Streamyo hereby grants You the right to use and distribute via Online Distribution certain Streamyo content, Streamyo Site content and other materials, insofar as such materials are made available to You by Streamyo during the term of this Agreement, and to "frame," "mirror" or otherwise copy portions of the Streamyo Site and Streamyo content as may be made available to You by Streamyo. Streamyo reserves the right, in its sole and absolute discretion, to revoke the license set forth in this Section 10(k) at any time, effective immediately upon notice to You.
(j) Community Members: Your License to Streamyo. In connection with Your Participation as a Community Member, by uploading, submitting, emailing, posting, publishing or otherwise transmitting any Member Comments, You hereby grant (or warrant that the owner of such rights has expressly granted) Streamyo a worldwide, royalty-free, non-exclusive, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, create derivative works of, perform, display, distribute, publish and transmit such Member Comments in any form, medium or technology now known or later developed. You warrant that any Member Comments You submit do not infringe upon any rights, including intellectual property rights, of any other parties. In addition, You warrant that all so-called moral rights in the Member Comments have been waived.
(k) Your Information. You authorize Streamyo to use, as applicable to Your Participation, Your trademarks, service marks, trade names, proprietary logos, domain names, Affiliate Site usage statistics and any other source or business identifiers (collectively, "Your Information") in presentations, as a feature on the Streamyo Site, marketing materials, customer lists and financial reports, in connection with Streamyo's marketing, distribution and provision of the Streamyo Products and Streamyo Partner Program. You also grant Streamyo a non-exclusive license to index and cache Your Information and any portion thereof, by manual or automated means (including with web spiders and crawlers), for purposes of promoting, providing and improving the Streamyo Products and the Streamyo Partner Program and for soliciting other distributors, publishers, creators and advertisers to use the Streamyo Products and Participate. You acknowledge and agree: (i) that You understand that You may provide, and Streamyo may collect, Your Information during Your Participation; and (ii) that Your Information may be shared with Streamyo's affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
(l) No Endorsement; No Publicity. Streamyo does not endorse, verify, evaluate or guarantee any information or Video Content or Ads provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or Video Content or Ads. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which offer such information, (i) containing or suggesting an endorsement by Streamyo of You or Your Video Content or Ads; or (ii) relating to this Agreement, without the prior review and written approval of Streamyo. Notwithstanding the foregoing, You may accurately disclose and describe Your Participation and Your Video Content (for example, describing and promoting Your Video Content on Your blog or in emails).
(m) Reserved Rights. You will not attempt to modify, prepare derivative works from, translate, adapt, edit, decompile, disassemble or reverse engineer any specifications, technology, applications or software programs provided or made accessible to You or used by Streamyo in connection with the Streamyo Products and Streamyo Partner Program in any way, unless expressly authorized in writing by Streamyo. Streamyo may modify the format and look and feel of the Streamyo Products and Streamyo Partner Program from time to time. Excluding Your Video Content or Ads, You agree to assign and hereby do assign to Streamyo and its licensors (as applicable) all right, title and interest in and to any part of the Streamyo Products and Streamyo Partner Program that You may have or acquire during Your Participation. You warrant that all so-called moral rights You may have in the Streamyo Products or Streamyo Partner Program are hereby waived. You will not delete, remove, obscure or in any manner alter the copyright, trademark, license or other proprietary rights notices affixed to or contained in the Streamyo Products or Streamyo Partner Program. Any rights not expressly granted herein are deemed withheld.
11. Action Fraud
You will not, and will not authorize any party to, directly or indirectly, generate automated, fraudulent or otherwise invalid Advertising Actions. If, in Streamyo's reasonable business judgment, Advertising Actions or activity related to Your Account is suspected or determined to be so-called "click fraud" or "impression fraud", whether in any automated or human way, by the use of a person, an automated script or a computer program (for example, online robots or "bots") to click on an Ad, or any other fraudulent means, to increase impressions, skew results or imitate a legitimate user of a web browser, for example, by clicking on an Ad for the purpose of generating an improper click value and generating revenue (collectively, "Action Fraud"), Streamyo may suspend or otherwise disable Your Account until such time as the matter is resolved to Streamyo's satisfaction.
12. Adult Content
(a) You will not use the Streamyo Site or Streamyo Partner Program for any purpose or in any manner to display, post or make available any hardcore (including penetration) sexual, pornographic or erotic material nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Streamyo Site or Streamyo Partner Program any Video Content, Ads or Member Comments, that is of, hardcore sexual, pornographic or erotic nature ("Adult Content"). Examples of content that Streamyo, in its sole discretion, considers to be Adult Content include, but are not limited to material that is pornographic, obscene, indecent or profane in its use of of sexual acts. If Streamyo finds Video Content that it determines, in its sole discretion, contains Adult Content, Streamyo may, without notice, remove or block access to such Video Content. Streamyo reserves the right to suspend or cancel at any time and without notice Your Account, or deduct or withhold payments related to any Video Content or Ads, that Streamyo, in its sole discretion, determines to be in violation of this Section. Streamyo will take all appropriate steps with Video Content that Streamyo believes violates applicable laws, including cooperation with any law enforcement investigation. If You see content that You believe is Adult Content or is in violation of law or this Section, You should contact Streamyo immediately.
(b) Streamyo takes seriously all laws against child pornography. Thus, it will not condone, and it intends to cooperate with all governmental agencies that seek those who produce, child pornography. By using this website, you agree that all User Submissions you upload to this website for viewers in the United States or any of its territories or possessions are fully compliant with all laws relating to child pornography in the United States, including but not limited to 18 U.S.C. section 2257. If you need to review this statute before agreeing to these terms, then visit http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002257----.... By using this website, you also agree that all User Submissions you upload to this website for viewers anywhere in the world comply with any and all applicable laws.
13. Copyright Infringement
You will not use the Streamyo Site or Streamyo Partner Program for any purpose or in any manner that infringes the copyrights of any third party, nor will You upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Streamyo Site or Streamyo Partner Program any content, that infringes the copyrighted works or violates the intellectual property rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA") (the text of which may be found on the U.S. Copyright Office website at "http://lcweb.loc.gov/copyright/"), it is Streamyo's policy to respond to notices of any actual or alleged infringement that are reported to Streamyo's "Designated Copyright Agent" and that comply with the DMCA. It is Streamyo's policy to terminate the Accounts of users of repeat infringers or of users repeatedly charged with infringement, in appropriate circumstances. If You believe that a work has been copied in a way that constitutes copyright infringement, You should send a notice of infringement to Streamyo's Designated Copyright Agent in accordance with Streamyo's Copyright Policy (http://one.Streamyo.com/Streamyo/go/copyright), incorporated herein, at the address indicated in Streamyo's Copyright Policy.
14. Term and Termination
(a) Termination. Streamyo may immediately terminate this Agreement, or cancel the Streamyo Partner Program, for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to Streamyo as set forth in Section 15 ("Notifications").
(b) Effect of Termination. General. Upon termination or expiration of this Agreement, Your right to Participate (including but not limited Your right to receive compensation, if any, as an Producer or a Affiliate) will automatically terminate. In the event of termination, Your Account will be disabled and You may not be granted access to Your Account or any files or other content contained in Your Account although residual copies of information may remain in the Streamyo Partner Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate; (ii) You will promptly destroy all copies of Streamyo content in Your possession or control; and (iii) Streamyo will pay all undisputed amounts, if any, due to You within ninety (90) days from the last day of the month in which termination occurs. In no event, however, shall Streamyo make payments for any earned balance less than twenty dollars ($20). Upon termination, Streamyo may continue to use any user analytics collected hereunder for solely internal (including archival) purposes, and all related licenses You have granted Streamyo shall remain in effect for this purpose only. In the event that this Agreement or the Streamyo Partner Program expires or is terminated, Streamyo shall not be obligated to return any materials to You.
Producers. Upon termination, Streamyo will remove any Ads or deactivate any Ad links associated with Your Video Content. Although Streamyo will use commercially reasonable efforts to ensure Your Video Content is removed from the Streamyo Site within seventy-two (72) hours following termination, Streamyo shall have no obligation to remove any of Your Video Content that: (i) is otherwise publicly available through the Internet or other publicly accessible medium; or (ii) any of Your Video Content that is distributed by Affiliates in the Streamyo Affiliate Network or their end users without monetary compensation as set forth in Section 10(f) ("Producers: Your Irrevocable Non-Commercial Distribution License"). In the event that Streamyo does not remove Your Video Content from the Streamyo Site within seventy-two (72) hours through inadvertence or other error, Streamyo shall not be liable to You for damages or charges of any kind in an amount greater than the revenues You would have been entitled to under this Agreement but for the termination. For the avoidance of doubt, Streamyo cannot, and has no obligation to, remove any of Your Video Content that has been distributed through the Streamyo Affiliate Network, and the Creative Commons Licenses You have granted in Section 10(f) herein shall remain in effect for this purpose only.
(c) Survival. The rights and obligations contained in Section 10(a) ("Streamyo's Ownership Rights") and 10(b) ("Your Ownership Rights"), Section 10(f) ("Producers: Your Irrevocable Non-Commercial Distribution License"), Section 10(j) ("Affiliates: Your Right to Distribute Other Materials"), Section 14(b) ("Effect of Termination"), Section 14(c) ("Survival"), Section 16 ("Confidential Information"), Section 19 ("Indemnity"), Section 20 ("No Guarantees; Warranty Disclaimers"), Section 21 ("Limitation of Liability") and Section 22 ("General") of this Agreement will survive termination or expiration of this Agreement for any reason.
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15. Notifications
Streamyo may provide notices to You by email to the email address specified in Your Account, by posting a message to Your Account interface or by posting a message to the Streamyo Site, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages to Your Account interface or on the Streamyo Site). Any notices to Streamyo must be sent either: (i) via email to Streamyo, LLC., Streamyo Partner Program, contact@streamyo.com; or (ii) via confirmed facsimile (fax number (484) 991-3688), with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt.
16. Confidential Information
During the term of this Agreement, You may receive confidential information from Streamyo related to Your Participation. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, You will use reasonable efforts to maintain the confidentiality of all such information and You will not disclose such information without the prior written consent of Streamyo. In no event will You use less effort to maintain the confidentiality of such information than You ordinarily use with respect to Your own confidential information. The foregoing will not restrict You from disclosing confidential information of Streamyo: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that if You are required to make such a disclosure, You give reasonable and timely notice to Streamyo to contest such order or requirement; and (b) on a confidential basis to Your legal or financial advisors, or prospective acquirers or investors. Examples of Streamyo confidential information include without limitation: (i) all software, technology, services, algorithms, search engines and search indices, programming, specifications, materials, guidelines and documentation relating to the Streamyo Products and the Streamyo Partner Program; (ii) click-through or Advertising Action rates, conversion rates and other statistics relating to the Streamyo Products and the Streamyo Partner Program; and (iii) Trial Features or any other information designated in writing by Streamyo as "Confidential" or an equivalent designation. Notwithstanding the foregoing, You may accurately disclose the amount of Streamyo's payments, if any, to You made pursuant to this Agreement. Confidential information does not include information that: (w) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (x) is rightfully known by You at the time of disclosure without a confidentiality obligation; (y) is independently developed by You without use of Streamyo's confidential information; or (z) You rightfully obtain from a third party without disclosure restrictions.
17. Representation & Warranties
(a) Your Authority. You represent and warrant to Streamyo that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, conduct Yourself and Your business and to execute, deliver, and perform all of Your obligations under this Agreement; (ii) You have provided, and will continue to provide, information that is correct and current; (iii) You are the owner—or the authorized agent of the owner—of Your Video Content (if You are an Producer), Your Ads (if You are a Sponsor), Your Affiliate Sites (if You are a Affiliate), and Your Member Comments (if You are a Community Member) and have full technical and editorial control of the same; (iv) You have the right to grant the licenses granted under this Agreement; (v) Your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; (vi)Your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; (vii) You will Participate solely for the purposes intended and expressly permitted.
(b) Your Materials. You represent and warrant that Your Video Content (if You are an Producer), Your Ads (if You are a Sponsor), Your Affiliate Sites (if You are a Affiliate), Your Member Comments (if You are a Community Member) or any other information or material You submit or make available to others during Your Participation, and Streamyo's use thereof pursuant to this Agreement, (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) do not contain Adult Content; (iii) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (iv) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party's use of the Streamyo Products or Participation in the Streamyo Partner Program; (v) do not promote illegal or harmful activities or substances (including without limitation activities that promote or provide instructional information about activities such as making or buying illegal weapons or substances); (vi) are not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, Your Video Content, Your Ads and Your Affiliate Sites are created, displayed or accessed; (vii) do not contain any computer programming routines or viruses (including without limitation time bombs, Trojan Horses, worms, Easter Eggs, drop dead devices or cancelbots) that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit unauthorized access to or Participation in the Streamyo Partner Program or disable, damage or erase any portion of the Video Content or Ads processed or stored therein; or (viii) do not constitute unsolicited bulk email, junk mail, spam or chain letters.
(c) Your Actions. You represent and warrant that You will not, and will not authorize or encourage any third party to, directly or indirectly: (i) obtain any information or materials relating to the Streamyo Products or the Streamyo Partner Program through any means not intentionally made available by Streamyo to You, or attempt to gain unauthorized access to Streamyo's database, technology, computer systems or networks associated with the Streamyo Products or the Streamyo Partner Program; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the Streamyo Products and the Streamyo Partner Program.
(d) Cooperation. You agree to cooperate fully with Streamyo to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of this Section 17 ("Representations and Warranties") is a material breach of this Agreement and that Streamyo may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your Account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. Streamyo reserves the right to investigate, at its own discretion, any activity that Streamyo suspects may violate this Agreement. Streamyo may, as applicable, withhold payment, notify Your bank, the authorities, suspend or cancel Your Account and/or take appropriate actions at any time without notice to You if Streamyo, in its sole discretion, (i) suspects that You have breached or failed to comply (in full or in part) with any provision of this Agreement or any Policies or rules established by Streamyo; or (ii) suspects that Your actions may be illegal or cause liability.
18. Links
The Streamyo Products and the Streamyo Partner Program may provide, or third parties may provide, links to other websites or resources. Because Streamyo has no control over such sites and resources, You acknowledge and agree that Streamyo is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that Streamyo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
19. Indemnity
You will indemnify, defend and hold Streamyo and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and applicable third parties (e.g., relevant content creators, advertisers, Affiliate partners, referral partners, service providers, licensors, licensees, consultants and contractors) (collectively, the "Streamyo Entities") harmless from and against any claims, liabilities, losses, costs, damages or expenses (including reasonable attorneys' fees and costs) directly or indirectly arising out of or in any way relating to: (i) Your gross negligence or willful misconduct; (ii) Your Video Content (if You are an Producer), Your Ads (if You are a Sponsor), Your Affiliate Sites (if You are a Affiliate), Your Member Comments (if You are a Community Member) or any other information or material You submit during Participation; (iii) Your conduct, including Your use of Streamyo Products or any other actions related to Your Participation; (iv) any actual violation or breach of this Agreement, or allegation of such violation or breach by a third party, including breach of any representation made by You hereunder; or (v) the alleged or actual violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of any action or Participation by You (collectively, the "Claims"). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Streamyo Entities. Streamyo shall have the right to withhold any payments due to You, if any, to offset liabilities and expenses covered hereunder. Streamyo shall have the right, in its sole discretion, to select its own legal counsel to defend Streamyo from any Claims (but by doing so shall not excuse Your indemnity obligations) and You shall be solely responsible for the payment of all Streamyo's reasonable attorneys' fees incurred in connection therewith. You shall notify Streamyo immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or Streamyo's ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of Streamyo, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for Streamyo.
20. No Guarantees; Warranty Disclaimer
(a) No Guarantees. Streamyo makes no guarantees: (i) regarding the availability, operation, maintenance, timing or delivery of the Streamyo Products, the Streamyo Partner Program or any distribution channel (or any portion thereof); (ii) that Participation will secure any success or generate any revenue or the amount of payment (if any) to be made hereunder; (iii) that Video Content or Ads will be distributed in the Streamyo Affiliate Network; (iv) regarding the relevancy of any Ads to Video Content; or (v) regarding Advertising Action rates, including the level or number of clicks, conversions to sales or impressions on any Ad, in connection with Video Content.
(b) Warranty Disclaimers. Your use of the Streamyo Products and Participation in the Streamyo Partner Program are at Your sole discretion and risk. The Streamyo Products and the Streamyo Partner Program, and all materials, information, products and services included therein, are provide on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind.
THE STREAMYO ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE STREAMYO PRODUCTS AND THE STREAMYO PARTNER PROGRAM, 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.
The Streamyo Entities disclaim any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Streamyo Products or the Streamyo Partner Program; (ii) regarding the goods, services, advise, information or links provided by any Third Party Services Providers, Producers, Sponsors, Affiliates or Community Members; (iii) that the Streamyo Products or the Streamyo Partner Program will meet Your requirements; or (iv) that the Streamyo Products or the Streamyo Partner Program will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by You from Streamyo or from Your Participation, shall create any warranty not expressly stated in this Agreement.
Streamyo assumes no responsibility for: (i) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (ii) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Streamyo Products or the Streamyo Partner Program or combination thereof, including any injury or damage to You or to any person's computer related to or resulting from Participation.
Under no circumstances shall Streamyo be responsible for any loss or damage, including personal injury or death, resulting from Participation, from any Video Content, Ads or Member Comments posted on or through the Streamyo Products or the Streamyo Partner Program, or from the conduct of any users of the Streamyo Products or Participation in the Streamyo Partner Program, whether online or offline.
Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to You.
21. LIMITATION OF LIABILITY
THE STREAMYO ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE STREAMYO PRODUCTS, YOUR PARTICIPATION IN THE STREAMYO PARTNER PROGRAM OR USE OF ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE STREAMYO PARTNER PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT STREAMYO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STREAMYO'S LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO STREAMYO FOR THE STREAMYO PRODUCTS OR PARTICIPATION IN THE STREAMYO PARTNER PROGRAM.
You acknowledge that Streamyo permits Your Participation relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain and of the allocation of risks between the parties. Streamyo shall no liability for 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 Streamyo's infrastructure or connectivity to the Internet, or failure of any Affiliate Site or third party distribution partner, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Streamyo will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to You.
22. General
(a) Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is excluded and does not apply to this Agreement. Except as expressly set forth in subsection (b) below ("Injunctive Relief"), any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be submitted to the Judicial Arbitration and Mediation Services, Inc. or its successor ("JAMS") and decided by binding arbitration, in accordance with the JAMS' Comprehensive Arbitration Rules and Procedures (Streamlined Arbitration Rules and Procedures) as such rules shall be in effect on the date of submission to arbitration, by one arbitrator reasonably familiar with the business pertaining to the products and services covered by this Agreement, appointed in accordance with such Rules and Procedures. The arbitrator shall apply Arizona law to the merits of any dispute or claim. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Maricopa County, Arizona, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any action is brought by either party in connection with this Agreement, the substantially prevailing party will be entitled to recover from the other party all the costs, attorneys' fees and other expenses reasonably incurred by such party. All offers, promises, conduct and statements, whether oral or written, made in the course of the arbitration by any of the parties, their agents, employees, experts and attorneys, and by the arbitrator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the arbitration.
(b) Injunctive Relief. Notwithstanding the "Governing Law; Arbitration" section above, You agree that certain breaches by You would cause irreparable injury to Streamyo, for which there are no adequate remedies at law, and nothing in this Section shall be deemed to prevent or delay Streamyo's attempt to seek a temporary restraining order, preliminary injunction, specific performance or other interim or conservatory relief from any court having jurisdiction, without any abridgment of the power of the arbitrator, for Your breach of: (i) Section 10(a) ("Streamyo's Ownership Rights"); (ii) Section 13 ("Copyright Infringement"); and (iii) Section 16 ("Confidential Information").
(c) Assignment. You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Streamyo. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Streamyo may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
(d) Waiver; Severability. The failure to require performance of any provision shall not affect Streamyo's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties' intention and only to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Export Restrictions/Legal Compliance. You agree to comply with all United States and other applicable export laws and related restrictions and regulations, and not to directly or indirectly export, provide or otherwise make available the services and products of Streamyo in violation of any such export laws, unless any required prior authorizations or necessary approvals are obtained by You, at Your expense, from the applicable United States or foreign authority.
(f) Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between You and Streamyo regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral, between You and Streamyo relating to this subject matter. You may be subject to additional terms and conditions that may apply when You use or access certain features of the Streamyo Partner Program.
(g) Relationship. You and Streamyo are independent contractors, and this Agreement, including but not limited to submission or distribution of any Video Content or Ads, will not, in whole or in part, establish any relationship of partnership, joint venture, employment, franchise or agency between the You and Streamyo. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. Neither party is authorized to act as an agent or representative of the other or for or on behalf of the other party in any capacity other than as expressly set forth in this Agreement. Neither party shall in any manner advertise, represent or hold itself (or any of its agents) out as so acting or being authorized so to act, or incur any liabilities or obligations on behalf of, or in the name of, the other party, unless specifically provided for in this Agreement. Moreover, each party shall be solely responsible for the payment of all of its own taxes, assessments and all other similar withholdings from or assessments on any monies paid hereunder or in connection with the transactions contemplated hereby.
(h) Reserved Rights. Streamyo reserves the right to change, in whole or in part, the names, logos, presentation and display of the Streamyo Member Agreement, the Streamyo Partner Program and the Streamyo Products at any time in its sole discretion.