StreamSpot Customer Agreement
Print Agreement
This StreamSpot Customer Agreement (this "Agreement") is between Subsplash,
Inc. dba StreamSpot, a Washington corporation("Subsplash"), and Customer
(defined below). The "Services" are the StreamSpot video streaming and
related services, through the Subsplash Media App, www.streamspot.com, or
any other website or service owned by Subsplash that includes a link to
this Agreement (a "Website"). "Customer" is the person or, if the person is
acting on behalf of an entity or organization, the entity or organization
that has registered to use the Services. Subsplash will make the Services
available to Customer in accordance with the terms and conditions set forth
in this Agreement, the Subsplash Terms of Service, and the Subsplash Terms
of Use, incorporated herein by reference.
1. SERVICES
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1.1 Subject to the terms of this Agreement, Subsplash will provide the
Services to Customer. Each party may suspend or terminate the Services
or the Agreement upon thirty (30) days' notice to the other party in
the event the other party is in material breach of this Agreement and
the other party has not cured such breach within such thirty (30) day
period. Notwithstanding the previous sentence, Subsplash may suspend or
terminate the Services or the Agreement immediately in the event
Customer fails to pay any Fees that are due and payable to Subsplash or
Customer is using the Services or Applications (defined below) in a
manner that could harm the Services, the Applications, Subsplash, or
any third party.
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1.2 If the Agreement is terminated for any reason:
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(a) Customer shall pay Subsplash within thirty (30) days all fees
accrued for the Services prior to the date of termination, provided
that if Customer reasonably terminates this Agreement because of
Subsplash's material breach, Subsplash shall be responsible to
refund to Customer unused pre-paid service fees, if any;
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(b) Customer's right to access and use the Services shall be
revoked and be of no further force or effect;
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(c) No later than thirty (30) days after termination, Subsplash may
completely erase or delete all Customer Content (defined below),
and Subsplash shall have no obligation to store or make available
such Customer Content to Customer;
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(d) Customer agrees to timely return all materials related to the
Services to Subsplash at Customer's expense or, alternatively, upon
prior written approval of Subsplash, provide Subsplash with an
officer's certification of the destruction thereof; and
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(e) all provisions in the Agreement, which by their nature are
intended to survive termination, shall so survive, including,
without limitation, Sections 8, 9, 10, 11, and 13.
2. FEES AND PAYMENT
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2.1 In consideration of the delivery of the Services, Customer shall
pay Subsplash a service fee based on one of the following pricing
options that Customer has elected
(i) Subsplash's current hourly rate for streaming content
multiplied by the amount of time Customer streams data or content
through or using the Services (the "Usage Service Fee"), (ii)
Subsplash's applicable monthly fee (the "Monthly Service Fee") for
month-to-month use of the Services, (iii) Subsplash's applicable
semi-annual fee (the "Semi-Annual Service Fee" and each of the
Semi-Annual Service Fee, the Usage Service Fee or the Monthly
Service Fee constitute a Customer's "Service Fee") for use of the
Services for periods equal to 6 months, or (iv) Subsplash's
applicable annual fee (the "Annual Service Fee" and each of the
Annual Service Fee, the Usage Service Fee or the Monthly Service
Fee constitute a Customer's "Service Fee") for use of the Services
for periods equal to 12 months.
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2.2 If Customer agrees to pay Subsplash for the Service by paying the
Usage Service Fee, Customer will pay for the Service based solely on
Customer's use of the Service. If Customer agrees to pay Subsplash for
the Service by paying the Monthly Service Fee, Customer is agreeing to
pay for the Service on a month-to-month basis (the "Month-to-Month
Service"). Customer agrees that by electing to receive the
Month-to-Month Service it will automatically be charged for each
additional month until it cancels the Month-to-Month Service in
accordance with this Agreement. If Customer agrees to pay Subsplash for
the Service by paying the Semi-Annual Service, Customer is agreeing to
pay for the Service for a 6 month period (the "Semi-Annual Service").
Customer's receipt of the Semi-Annual Service will automatically renew
for additional 6 month periods at the expiration of the previous period
a ("Renewal Semi-=Annual Period"), until Customer cancels the
Semi-Annual Service in accordance with this Agreement. If Customer
agrees to pay Subsplash for the Service by paying the Annual Service,
Customer is agreeing to pay for the Service for a 12 month period (the
"Annual Service"). Customer's receipt of the Annual Service will
automatically renew for additional 12 month periods at the expiration
of the previous period a ("Renewal Annual Period"), until Customer
cancels the Annual Service in accordance with this Agreement.
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2.3 In addition, Customer may purchase certain other premium services
at Subsplash's then-applicable rate (collectively, the premium fees and
the Service Fees, are the "Fees"). Customer will pay all such Fees in
accordance with any payment procedures detailed by Subsplash. Except as
expressly set forth in the Agreement, all amounts paid to Subsplash are
nonrefundable. Customer is responsible for all applicable federal,
state, local country, provincial or local taxes relating to the
Services (including without limitation any value added tax, if
applicable), excluding taxes based on Subsplash's income.
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2.4 If any amount owing under this or any other agreement for Services
is 30 or more days overdue, Subsplash may, without limiting its other
rights and remedies, accelerate unpaid fee obligations under this and
such agreements so that all such obligations become immediately due and
payable, and suspend Services until such amounts are paid in full. Any
invoice that remains unpaid for more than 30 days will accrue interest
at a rate equal to the lesser of (i) one and one-half percent (1.5%)
per month; and (ii) the maximum interest rate permitted under
applicable law, provided that such amount shall not be less than $15
per month unless prohibited by applicable law. Subsplash will provide
at least seven (7) days' prior notice that Customer's account is
overdue before suspending Services for failure to make a timely
payment. Customer shall pay all reasonable attorneys' fees and other
amounts that Subsplash incurs in its efforts to collect amounts owed by
Customer to Subsplash.
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2.5 For the Month-to-Month Service, the Semi-Annual Service and the
Annual Service, Customer authorizes Subsplash to automatically continue
to collect the then-applicable Fees and any taxes owed by Customer,
using any credit card that Customer has provided to Subsplash. Customer
may cancel automatically-renewing Services by logging into the Website
and changing the settings prior to the beginning of a new month for the
Month-to-Month Service, a Renewal Semi-Annual Period or a Renewal
Annual Period for the Annual Service.
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2.6 Subsplash may change the Fee rates by notifying Customer at least
sixty (60) days prior to the effective date of such rate increase.
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2.7 Subsplash may provide Customer with discounts (a "Discount") for a
specified period as set forth in an invoice ("Discount Period"). Upon
the expiration of the Discount Period, the Discount shall automatically
terminate without any further action by Customer and Customer shall pay
Subsplash's current applicable Fees.
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2.8 Subsplash sometimes offers customers promotional use of the
services at promotional rates (the "Promotional Offer"). The
Promotional Offer will expire on the date set forth by Subsplash in the
applicable invoice describing such Promotional Offer. Upon Customer
agreeing to pay the Fees for use of the Services, the Promotional Offer
will immediately expire and Customer's Fees will automatically begin to
accrue on the date of Customer's agreement to pay such Fees,
notwithstanding the end date of the Promotional Offer.
3. TERM AND TERMINATION
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3.1 This Agreement commences on the date that Customer first accepts it
and continues until it has been terminated.
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3.2 A party may terminate this Agreement for cause (i) upon 30 days
written notice to the other party of a material breach if such breach
remains uncured at the expiration of such period, or (ii) if the other
party becomes the subject of a petition in bankruptcy or any other
proceeding relating to insolvency, receivership, liquidation, or
assignment for the benefit of creditors.
4. USE OF THE SERVICES; LICENSE
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4.1 Subject to the terms and conditions of the Agreement, Subsplash
hereby grants Customer during the Term a limited, revocable,
non-exclusive, non-transferable, non-assignable license to use the
object code of the software applications that are provided by Subsplash
to enable Customer to use the Services (the "Applications") in the form
provided by Subsplash. The Services contain proprietary trade secret
technology of Subsplash. Unauthorized use and/or copying of the
Applications or any component of the Services are prohibited by law,
including United States and foreign copyright law. Customer may use the
Applications and the software included in the Services in object code
form only, and shall not reverse compile, disassemble or otherwise
convert such software into uncompiled or unassembled code. Customer may
not relicense or sublicense the Services or the Applications, or
otherwise permit use of the Services (including timesharing or
networking use) by any third party. Customer may not provide service
bureau or other data processing services that make use of the Services
without the express prior written consent of Subsplash. No license,
right, or interest in any Subsplash trademark, trade name, or service
mark, or those of Subsplash's licensors or third party suppliers, is
granted hereunder.
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4.2 Customer agrees and acknowledges that Subsplash retains ownership,
as owner or licensee, of all right, title and interest to the Services
and the Applications, all of which are protected by copyright and other
intellectual property rights, and that, other than the express licenses
granted herein, Customer does not obtain and may not claim any rights
in or ownership interest to the Services or any associated intellectual
property rights therein. Customer agrees to comply with all copyright
and other intellectual property rights notices contained on or in any
information obtained or accessed by Customer through the Services.
5. CUSTOMER CONTENT; ACCEPTABLE USE
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5.1 Customer represents and warrants to Subsplash that it has the right
to publish and disclose or make available Customer's data and other
content (the "Customer Content") through the Services. Customer
represents and warrants to Subsplash that the Customer Content will
not: (a) infringe or violate any third-party right, including (but not
limited to) intellectual property, privacy, or publicity rights; (b) be
abusive, profane, or offensive to a reasonable person; or, (c) be
hateful or threatening.
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5.3 Customer shall take all reasonable steps to ensure that no
unauthorized persons have access to the Services, and to ensure that no
persons authorized to have such access shall take any action that would
be in violation of the Agreement.
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5.4 Customer will not (a) use, or allow the use of, the Services, the
Applications or Customer Content in contravention of any federal,
state, local, foreign or other applicable law, or rules or regulations
of regulatory or administrative organizations; (b) introduce into the
Services or any Website any virus or other code or routine intended to
disrupt or damage the Services or a Website, or alter, damage, delete,
retrieve or record information about the Services or its users; (c)
excessively overload the Subsplash systems used to provide the
Services; (d) perform any security integrity review, penetration test,
load test, denial of service simulation or vulnerability scan on the
Services; (e) use any tool designed to automatically emulate the
actions of a human user (e.g., robots); or (f) otherwise act in a
fraudulent, malicious or negligent manner when using the Services.
6. CONNECTIVITY
Customer acknowledges that it shall be responsible for securing, paying
for, and maintaining connectivity to the Services (including any and all
related hardware, software, third party services and related equipment and
components).
7. SERVICE SUPPORT AND AVAILABILITY
Subsplash shall: (a) provide basic support for the Services at no
additional charge, (b) use commercially reasonable efforts to make the
Services available 24 hours a day, 7 days a week, except for: (i) planned
downtime (when it shall give at least 8 hours' notice), or (ii) any
unavailability caused by circumstances beyond Subsplash's reasonable
control, including without limitation, acts of nature, acts of government,
floods, fires, earthquakes, civil unrest, acts of terror, strikes or other
labor problems, internet service provider failures or delays, or denial of
service attacks.
8. DISCLAIMERS OF WARRANTY
SUBSPLASH HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND
REPRESENTATIONS RELATING TO THE SERVICES OR THE APPLICATIONS, EXPRESS AND
IMPLIED, ORAL OR IN WRITING, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING.
THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED.
SUBSPLASH MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE
COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED
THEREFROM WITH RESPECT TO THE APPLICATIONS OR THE SERVICES.
9. INDEMNIFICATION
To the extent permitted by applicable law, Customer agrees to defend,
indemnify, and hold harmless Subsplash, its officers, members, managers,
employees, affiliates, and agents against any and all claims, damages,
obligations, losses, liabilities, costs or debt, and expenses, including
but not limited to reasonable attorneys' fees arising from: (i) Customer's
use of the Services or the Applications; (ii) Customer's breach of this
Agreement; (iii) Customer's violation of any third party right, including,
without limitation, any copyright, proprietary, publicity, or privacy right
or any action or inaction of Customer that has resulted in any tort,
injury, damage or harm to any other person; or (iv) any claim that the
Customer Content damaged a third party. This defense and indemnification
obligation will survive the termination of this Agreement.
10. LIMITATION OF LIABILITY
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10.1 SUBSPLASH WILL NOT BE LIABLE FOR ANY INJURIES CAUSED BY THE USE OF
THE SERVICES OR THE APPLICATIONS OR BY ANY ERRORS, DELAYS,
INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES OR THE
APPLICATIONS.
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10.2 THE TOTAL AGGREGATE LIABILITY OF SUBSPLASH TO CUSTOMER AND/OR ANY
THIRD PARTY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO
DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN
AMOUNT EQUAL TO THE AVERAGE MONTHLY PAYMENTS RECEIVED BY SUBSPLASH FOR
THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING
THE DATE IN WHICH THE CLAIM ARISES MULTIPLIED BY THREE (3).
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10.3 IN NO EVENT SHALL SUBSPLASH OR ITS AFFILIATES OR AGENTS BE LIABLE
TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR
REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES
RESULTING FROM DELAYS OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING
FROM OR RELATED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF THE
LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF
WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE,
AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND
REGARDLESS OF WHETHER SUBSPLASH HAS BEEN ADVISED OF THE POSSIBILITY OF
ANY SUCH LIABILITY, LOSS OR DAMAGE.
11. CONFIDENTIAL INFORMATION
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11.1 Each party shall protect the Confidential Information of the other
party with at least the same degree of care and confidentiality, but
not less than a reasonable standard of care, which such party utilizes
for its own information of similar character that it does not wish
disclosed to the public. Neither party shall disclose to third parties
the other party's Confidential Information, or use it for any purpose
not explicitly set forth herein, without the prior written consent of
the other party. The obligation of confidentiality shall survive for
three (3) years after the return of such Confidential Information to
the disclosing party or three (3) years after the expiration or
termination of the Agreement, whichever is later, as applicable,
provided that a receiving party must maintain the confidentiality of
any Confidential Information that constitutes a trade secret for so
long as the information is a trade secret.
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11.2 Notwithstanding the foregoing, a party may disclose Confidential
Information to the extent required: (a) to any consultants,
contractors, and counsel who have a need to know such Confidential
Information in connection with the Agreement and are subject to a
written confidentiality obligation comparable to the terms set forth in
this Agreement (a "Permissible Third Party"), or (b) by a court or
governmental agency, or if necessary in any proceeding to establish
rights or obligations under the Agreement; provided, that party
required to make the disclosure shall, unless legally prohibited,
provide the other party with reasonable prior written notice sufficient
to permit the other party an opportunity to contest such disclosure. If
a party commits, or threatens to commit, a breach of this Section, the
other party shall have the right to seek injunctive relief from a court
of competent jurisdiction. For Permissible Third Parties that receive
Confidential Information from a receiving party, the receiving party
will be responsible for the Permissible Third Party's breach of it
confidentiality obligation.
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11.3 The term "Confidential Information" means any and all information,
material, documents and data related to the business activities of the
other party, including, for Subsplash, any information related to the
Services or the Applications, provided "Confidential Information" does
not include any information that (i) is or becomes through no fault of
the receiving party part of the public domain; (ii) was already known
to the receiving party at the time of disclosure as evidenced by
written documents; (iii) is independently developed by the receiving
party without reference to any information provided by the disclosing
party; or (iv) was obtained by the receiving party from a third party
that was not subject to any confidentiality obligations to the
disclosing party.
12. EXPORT
Customer understands that any export of the Applications or related
documentation or information may require an export license and Customer
assumes full responsibility for obtaining such license. Customer must
obtain Subsplash's prior written consent before exporting the Applications.
13. GENERAL
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13.1 The parties agree that the Services are deemed to be solely based
in Ohio and the Website is deemed to be a passive conduit for the
Services that does not give rise to personal jurisdiction over
Subsplash, either specific or general, in jurisdictions other than in
Ohio.
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13.2 This Agreement shall be governed by Washington State law, without regard to
its conflict of law provisions. The parties consent to the state and
federal courts located in Seattle, Washington having exclusive
jurisdiction over any claims that arise from or are related to this
Agreement, the Applications, or the Services. The parties waive the
application of the United Nations Convention on Contracts for the
International Sale of Goods as to the interpretation or enforcement of
the Agreement.
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13.3 The invalidity or illegality of any provision of the Agreement
shall not affect the validity of any other provision. The parties
intend for the remaining unaffected provisions to remain in full force
and effect.
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13.4 Customer shall not assign the Agreement or any license contained
herein without the prior written consent of Subsplash and any purported
assignment, without such consent, shall be void. Subsplash may assign
this Agreement without Customer's consent.
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13.5 All notices given under the Agreement shall be in writing and sent
postage pre-paid, if to Subsplash Inc. DBA StreamSpot, to 6100 219th Street SW Suite 480, Mountlake Terrace WA 98043, Attn: StreamSpot
Customer Department; or if to Customer, to the billing address or
contact email address in Subsplash's records.
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13.6 No action, regardless of form, may be brought by either party more
than two (2) years after the cause of action has arisen.
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13.7 Nothing contained in this Agreement shall be deemed to create
rights in, or to be for the benefit of, persons not a party to this
Agreement, other than the successors or permitted assigns of the
parties to this Agreement.
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13.8 The section headings herein are provided for convenience only and
have no substantive effect on the construction of the Agreement.
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13.9 Use of the Service includes the ability to enter into agreements
and/or to make transactions electronically. CUSTOMER ACKNOWLEDGES THAT
WHEN IT INDICATES ACCEPTANCE OF AN AGREEMENT AND/OR TRANSACTION
ELECTRONICALLY, THAT ACCEPTANCE WILL CONSTITUTE ITS LEGAL AGREEMENT AND
INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS.
THIS ACKNOWLEDGEMENT THAT CUSTOMER INTENDS TO BE BOUND BY SUCH
ELECTRONIC ACCEPTANCE APPLIES TO ALL AGREEMENTS AND TRANSACTIONS
CUSTOMER ENTERS INTO THROUGH THE SERVICE OR WEBSITES.
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13.10 This Agreement constitutes the entire agreement between the
parties for the Services described herein and supersedes all prior or
contemporaneous representations, negotiations, or other communications
between the parties relating to the subject matter of the Agreement. In
the event of any inconsistency between this Agreement and the Terms of
Use on a Website, this Agreement will control. This Agreement may be
amended only by written notice to Customer at least ninety (90) days in
advance of such amendment.