By accessing the Livestream Service and/or by clicking “I agree”, you agree to be bound by these Terms, including the BINDING ARBITRATION section set forth in Section 23. You hereby represent and warrant to Livestream that you are at least thirteen (13) years of age and are otherwise capable of entering into and performing legal agreements, that you agree to be bound by these Terms and that your use of the Livestream Service is in compliance with all applicable laws and regulations. If you use the Livestream Service on behalf of a business, you hereby represent to Livestream that you have the authority to bind that business and your acceptance of these Terms will be treated as acceptance by that business. In that event, “you” and “your” will refer to that business in these Terms.
The Livestream Service is available to both paying and non-paying Users, as set forth on the Service. Users who pay for a subscription to the enhanced version of the Livestream Service (the “Paid Service”) are “Paid Plan Users.” Users who try the Paid Service through a free trial are “Free Trialers.” All other Users are “Free Users.”
Livestream reserves the right, at Livestream’s discretion, to change these Terms on a going-forward basis at any time by posting the amended Terms to the Livestream Service. Please check these Terms and any other policies periodically for changes. In addition, if our modifications are material, we will make commercially reasonable efforts to notify you electronically. For example, we may send a message to your email address, if we have one on file, or we may display a notice on the Site indicating that the Terms are changing and the effective date of any such changes. Your continued use of the Livestream Service after new and/or revised Terms are effective indicates that you have read, understood, and agreed to those Terms.
Subject to limited exceptions described below, these Terms provide that all disputes between you and Livestream will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights in any such dispute. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 23 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate most disputes with Livestream.
NOTHING IN THESE TERMS SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these Terms shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
2. Livestream’s Ownership of Materials; Limited License
2.a. The data and materials on the Livestream Service, except the Produced Content (as defined below), including, without limitation, the text, graphics, interactive features, logos, photos, music, videos, software, and all other audible, visual or downloadable materials, as well as the selection, organization, coordination, compilation and overall look and feel of the Livestream Service (collectively, the “Materials”) are the intellectual property of Livestream, its licensors and its suppliers. The Materials are protected by copyright, trade dress, patent, trademark and other laws, international conventions and proprietary rights and all ownership rights to the Materials remain with Livestream, its licensors or its suppliers, as the case may be. All trademarks, service marks, and trade names are proprietary to Livestream or its affiliates and/or third party licensors. Except as expressly authorized by Livestream, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make use of the Materials. If, with authorization, you download or print a copy of the Materials for personal use, you must retain all copyright, trademark, or other proprietary notices. Livestream reserves all rights not expressly granted in and to the Livestream Service and the Materials.
2.b. Subject to your compliance with the terms and conditions set out in these Terms, Livestream hereby grants you a personal, limited, non-exclusive, non-transferable, freely revocable license to use the Livestream Service.
2.c. LIVESTREAM RESERVES THE RIGHT TO ALTER, REMOVE OR DISCONTINUE ANY PORTION OF THE LIVESTREAM SERVICE OR THE CONTENT ON THE LIVESTREAM SERVICE, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION, AND WILL NOT BE LIABLE IN ANY WAY FOR POSSIBLE CONSEQUENCES OF SUCH CHANGES.
4. Your Produced Content
4.a. The Livestream Service provides a system and method for Users to produce and distribute authorized live and prerecorded audiovisual content (the “Audiovisual Content”). The Livestream Service permits its Users to create, upload and/or display content of their own creations, including Audiovisual Content, written works posted on message boards, chat and blogs, and any other content, including without limitation, videos, music, images, and text (collectively, “Produced Content”). Produced Content, which includes Audiovisual Content, and is distributed via the Livestream Service (in accordance with the terms herein) shall sometimes be referred to as a “Channel”. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR PRODUCED CONTENT. SUBMITTING YOUR PRODUCED CONTENT TO THE LIVESTREAM SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
4.b. By submitting Produced Content to Livestream:
4.b.i. If you are a Free User, you:
4.b.i.1. grant Livestream a perpetual, worldwide, non-exclusive, royalty-free, fully paid-up, sub-licensable through multiple tiers and freely transferable license to display, perform, use, reproduce, distribute, publish, create derivative works of, display, perform, sell, edit, and otherwise exploit your Produced Content solely in connection with the Livestream Service and Livestream’s (and its successor’s) business, including without limitation for promoting and redistributing your Produced Content or part of or all of the Livestream Service (and derivative works thereof) in any media formats, media channels or medium now or hereafter in existence. For the avoidance of doubt, the foregoing license includes, but is not limited to, the right to reproduce, distribute, display, perform, make derivative works from or otherwise exploit your Produced Content in proximity with or in connection with any third party content.
4.b.i.2. grant each user of the Livestream Service a non-exclusive license to access your Produced Content through the Livestream Service, and to use, reproduce, distribute, publish, prepare derivative works of, display and perform such Produced Content solely as permitted through the functionality of the Livestream Service and under these Terms.
4.b.ii. If you are a Paid Plan User or a Free Trialer, you:
4.b.ii.1. acknowledge that, in connection with the Livestream Service, Livestream will store your Produced Content on your behalf for use on your Channel (whether enabled and displayed via your own player or a Livestream embedded player), but that (i) while Livestream will use all reasonable commercial efforts to maintain the security of your Produced Content while stored, it does not guarantee that users will not be able to access, download or otherwise manipulate or copy such Produced Content, and (ii) while Livestream will use all reasonable commercial efforts to maintain the security of your Produced Content, Livestream does not employ a digital rights management system with respect to the Livestream Service (and therefore your Produced Content), and further does not guarantee that users will not be able to access, download or otherwise manipulate or copy such Produced Content.
4.b.ii.2. grant Livestream a worldwide (provided, however, that you may geo-block territories where you have not cleared any applicable rights), non-exclusive, royalty-free, fully paid-up license under all rights necessary to host, transmit, display, edit, and otherwise exploit your Produced Content solely in connection with the Livestream Service.
4.b.ii.3. agree that Livestream shall have the right to market and promote your Channel and related Producer Marks in connection with the Livestream Service, including by including your Produced Content in search results on the Livestream Service, unless you elect to not have your Produced Content indexed. “Producer Marks” means trademarks, trade names, service marks, logos and other indicia of source or business identifiers used by you and uploaded as part of your Produced Content. In accordance with the grant of such rights and subject to this Agreement, you hereby grant Livestream a royalty-free, non-exclusive, worldwide right and license to use, reproduce and display the Producer Marks solely in connection with the marketing and promotional considerations contemplated by this Agreement. Livestream, in using the Producer Marks, will comply with any trademark usage guidelines that you may provide to Livestream in writing from time to time. You reserve all other rights in and to the Producer Marks, and all goodwill associated with any use by Livestream of the Producer Marks will inure solely to your benefit.
4.b.ii.4. agree and acknowledge that with respect to transferring Produced Content from your Paid Service account to another account, including any Channel (“Transferred Content”), such Transferred Content may only be transferred to another Livestream Paid Service account with open capacity, or certain permitted Free User accounts, which may be subject to more restrictive settings.
4.c. Livestream reserves the right to limit the number of Users who contribute any elements of Produced Content for a Channel created by using a Livestream Paid Service account (such Users, “Contributors”); restrictions on Contributors, if any, shall be set forth in these Terms with respect to your use of the Paid Service.
4.d. Terms for All Users
4.d.i. You acknowledge and agree that:
4.d.i.1. Your Produced Content does not and will not violate any of the “Prohibited Uses” set forth in Section 5 of these Terms.
4.d.i.2. Violators of third-party rights may be subject to criminal and civil liability. Livestream reserves all rights and remedies against any Users who violate these Terms.
4.d.i.3. You understand that Livestream reserves the right to discontinue any aspect of the Livestream Service at any time, including the right to discontinue the display of any Produced Content or linked or embedded content either generally or in specific cases.
4.d.i.4. For the avoidance of doubt, you are not entitled to any compensation from Livestream for any Produced Content for any reason.
4.d.i.5. Your Produced Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Livestream Service.
4.d.i.6. The rights granted in this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform sound recordings (and the musical works embodied therein), all on a royalty-free basis. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post or transmit such sound recordings to or through the Livestream Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Livestream under these Terms.
4.d.i.7. If you are a composer or author of a musical work and are affiliated with a performing rights organization (a “PRO”), then you must notify your PRO of the royalty-free license you grant through these Terms to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms.
4.d.ii. You are solely responsible for all of your Produced Content and you hereby recognize and affirm that the Livestream Service is merely providing you the means to produce and distribute your Produced Content. Accordingly, you shall be solely responsible for your own Produced Content and the consequences of posting or publishing it. You hereby affirm, represent, and warrant that:
4.d.ii.1. You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Livestream and Users to use and distribute your Produced Content as necessary to exercise the rights and licenses granted by you in these Terms and in the manner contemplated by Livestream and these Terms.
4.d.ii.2. Your Produced Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity.
4.e. Livestream does not control your Produced Content posted by you and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for your Produced Content and any other material that you submit to Livestream.
4.f. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU SPECIFICALLY ACKNOWLEDGE THAT LIVESTREAM SHALL NOT BE LIABLE FOR PRODUCED CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
5. Prohibited Uses
YOU REPRESENT, WARRANT, AND COVENANT TO LIVESTREAM THAT YOU WILL NOT:
5.a. UPLOAD TO OR CREATE ON THE LIVESTREAM SERVICE ANY PRODUCED CONTENT THAT VIOLATES ANY LAW, REGULATION, TREATY OR THIRD PARTY RIGHT (INCLUDING, WITHOUT LIMITATION, TRADE SECRET, INTELLECTUAL PROPERTY, PRIVACY, OR PUBLICITY RIGHTS);
5.b. PUBLISH FALSEHOODS OR MISREPRESENTATIONS THAT COULD DAMAGE LIVESTREAM OR ANY THIRD PARTY;
5.c. POST, UPLOAD TO, OR CREATE ANY PRODUCED CONTENT THAT IS UNLAWFUL, OBSCENE, DEFAMATORY, LIBELOUS, THREATENING, PORNOGRAPHIC, VULGAR, HARASSING, HATEFUL, RACIALLY OR ETHNICALLY OFFENSIVE, OR ENCOURAGES VIOLENT CONDUCT OR CONDUCT THAT WOULD BE CONSIDERED A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY, VIOLATE ANY LAW, OR, IN LIVESTREAM’S SOLE DISCRETION, IS OTHERWISE INAPPROPRIATE;
5.d. UNLESS YOU ARE A PAID PLAN USER, POST ADVERTISEMENTS OR SOLICITATIONS OF BUSINESS;
5.e. IMPERSONATE ANOTHER PERSON OR ENTITY, WHETHER ACTUAL OR FICTITIOUS, FALSELY CLAIM AN AFFILIATION WITH ANY PERSON OR ENTITY, OR ACCESS THE LIVESTREAM SERVICE ACCOUNTS OF OTHERS WITHOUT PERMISSION, MISREPRESENT THE SOURCE, IDENTITY, OR CONTENT OF INFORMATION TRANSMITTED VIA THE LIVESTREAM SERVICE, OR PERFORM ANY OTHER SIMILAR FRAUDULENT ACTIVITY;
5.f. USE THE LIVESTREAM SERVICE FOR ANY PURPOSE OTHER THAN TO ACCESS THE LIVESTREAM SERVICE AS OFFERED BY LIVESTREAM;
5.g. CIRCUMVENT, DISABLE OR OTHERWISE INTERFERE WITH SECURITY-RELATED FEATURES OF THE LIVESTREAM SERVICE OR FEATURES THAT PREVENT, LIMIT OR RESTRICT USE OR COPYING OF ANY MATERIALS OR ANOTHER USER’S PRODUCED CONTENT;
5.h. RENT, LEASE, LOAN, SELL, RESELL, SUBLICENSE, DISTRIBUTE OR OTHERWISE TRANSFER THE LICENSES GRANTED HEREIN OR ANY MATERIALS. FOR CLARITY, YOU MAY NOT ASSIGN, SELL, OR TRANSFER ANY OF YOUR CHANNELS;
5.i. DELETE INDICATIONS OR NOTICES REGARDING THE COPYRIGHT OR OTHER PROPRIETARY RIGHTS ON THE LIVESTREAM SERVICE OR ANY THIRD PARTY CONTENT;
5.j. MAKE UNSOLICITED OFFERS, ADVERTISEMENTS, PROPOSALS, OR SEND JUNK MAIL OR SPAM TO OTHER USERS. THIS INCLUDES, BUT IS NOT LIMITED TO, UNSOLICITED ADVERTISING, PROMOTIONAL MATERIALS, OR OTHER SOLICITATION MATERIAL, BULK MAILING OF COMMERCIAL ADVERTISING, CHAIN MAIL, INFORMATIONAL ANNOUNCEMENTS, CHARITY REQUESTS (EXCEPT AS PERMITTED IN SECTION 12), AND PETITIONS FOR SIGNATURES;
5.k. USE THE LIVESTREAM SERVICE FOR ANY ILLEGAL PURPOSE, OR IN VIOLATION OF ANY LOCAL, STATE, NATIONAL, OR INTERNATIONAL LAW, INCLUDING, WITHOUT LIMITATION, LAWS GOVERNING INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS, AND DATA PROTECTION AND PRIVACY;
5.l. DEFAME, HARASS, ABUSE, THREATEN OR DEFRAUD USERS, OR COLLECT, OR ATTEMPT TO COLLECT, PERSONAL INFORMATION ABOUT USERS OR THIRD PARTIES WITHOUT THEIR CONSENT, OR, EXCEPT AS EXPRESSLY AUTHORIZED HEREIN, USE MATERIALS, THIRD PARTY PRODUCED CONTENT, OR OTHER CONTENT ON THE LIVESTREAM SERVICE FOR ANY COMMERCIAL USE, IT BEING UNDERSTOOD THAT, OTHER THAN AS EXPRESSLY STATED HEREIN, THE MATERIALS, THIRD PARTY PRODUCED CONTENT AND OTHER CONTENT AVAILABLE ON THE LIVESTREAM SERVICE IS FOR PERSONAL, NON-COMMERCIAL USE ONLY;
5.m. REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OF THE LIVESTREAM SERVICE OR ANY PART THEREOF, EXCEPT AND ONLY TO THE EXTENT THAT SUCH ACTIVITY IS EXPRESSLY PERMITTED BY APPLICABLE LAW NOTWITHSTANDING THIS LIMITATION;
5.n. ACCESS OR USE ANY AUTOMATED PROCESS (SUCH AS A ROBOT, SPIDER, SCRAPER, OR SIMILAR) TO ACCESS THE SITE IN VIOLATION OF OUR ROBOT EXCLUSION HEADERS, OR FOR THE PURPOSE OF SCRAPING ALL OR A SUBSTANTIAL PORTION OF THE CONTENT OF THE SITE (OTHER THAN IN CONNECTION WITH BONA FIDE SEARCH ENGINE INDEXING), OR AS MAY OTHERWISE BE EXPRESSLY PERMITTED BY LIVESTREAM;
5.o. MODIFY, ADAPT, TRANSLATE OR CREATE DERIVATIVE WORKS BASED UPON THE LIVESTREAM SERVICE OR ANY PART THEREOF, EXCEPT AND ONLY TO THE EXTENT THAT SUCH ACTIVITY IS EXPRESSLY PERMITTED BY APPLICABLE LAW NOTWITHSTANDING THIS LIMITATION;
5.p. INTENTIONALLY INTERFERE WITH OR DAMAGE THE OPERATION OF THE LIVESTREAM SERVICE OR ANY USER’S ENJOYMENT OF THEM, BY ANY MEANS, INCLUDING UPLOADING OR OTHERWISE DISSEMINATING VIRUSES, ADWARE, SPYWARE, WORMS, OR OTHER MALICIOUS CODE;
5.q. TAKE ANY ACTION THAT MAY UNDERMINE LIVESTREAM’S RATING AND COMMENT SYSTEM (SUCH AS DISPLAYING, IMPORTING OR EXPORTING INFORMATION OFF THE LIVESTREAM SERVICE, USING INFORMATION ON THE LIVESTREAM SERVICE FOR PURPOSES UNRELATED TO THE LIVESTREAM SERVICE, OR IMPROPERLY MANIPULATING OR USING THE RATINGS AND COMMENT SYSTEM);
5.r. TAKE ANY ACTION THAT IMPOSES OR MAY IMPOSE (IN LIVESTREAM’S SOLE DISCRETION) AN UNREASONABLE OR DISPROPORTIONATELY LARGE LOAD ON LIVESTREAM’S INFRASTRUCTURE;
5.s. INTERFERE OR ATTEMPT TO INTERFERE WITH THE PROPER WORKINGS OF THE LIVESTREAM SERVICE OR ANY ACTIVITIES CONDUCTED ON THE LIVESTREAM SERVICE;
5.t. BYPASS ROBOT EXCLUSION HEADERS OR OTHER MEASURES LIVESTREAM MAY USE TO PREVENT UNAUTHORIZED ACCESS TO THE LIVESTREAM SERVICE;
5.u. UNLESS YOU ARE A PAID PLAN USER, UPLOAD OR POST ANY PRODUCED CONTENTS THAT CONTAIN ADVERTISING OR OTHER PROMOTIONAL MATERIAL, INCLUDING LINKS TO SUCH MATERIAL UNLESS EXPRESSLY AUTHORIZED BY LIVESTREAM;
5.v. REGISTER MORE THAN FIVE (5) ACCOUNTS AND/OR TEN (10) CHANNELS, UNLESS YOU ARE PERMITTED TO UNDER THE TERMS OF YOUR PAID SERVICE ACCOUNT;
5.w. USE THE LIVESTREAM SERVICE TO STREAM SPORTS EVENTS FOR BETTING, GAMBLING, WAGERING OR OTHER GAMING PURPOSES; OR
5.x. ATTEMPT TO DO ANY OF THE ACTS DESCRIBED IN THIS SECTION 5, OR ASSIST OR PERMIT ANY PERSON IN ENGAGING IN ANY OF THE ACTS DESCRIBED IN THIS SECTION 5.
(a)-(x) of this Section 5 are collectively, “Prohibited Uses.”
a. General. You agree that Livestream, without penalty, may suspend or terminate any account (or any part thereof) you may have with Livestream or your use of the Livestream Service and remove and discard all or any part of your account, User profile, and any Produced Content, at any time if Livestream determines in its own sole discretion that you have violated these Terms. Livestream may also in its sole discretion and at any time discontinue providing access to the Livestream Service, or any part thereof (including without limitation all Materials), with or without notice. You agree that any termination or suspension of your access to the Livestream Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Livestream will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Livestream may have at law or in equity. As discussed in Section 7, Livestream does not permit copyright infringing activities on the Livestream Service, and may terminate access to the Livestream Service, and remove any Produced Content or other content submitted by any Users who are found to be repeat infringers. You may terminate these Terms at any time by discontinuing use of any and all parts of the Livestream Service.
b. Paid Plan Users. If you are a Paid Plan User, then:
6.b.i. Livestream retains the absolute right to immediately suspend or terminate your Paid Service account, and terminate this Agreement, if the charges to your credit card for any fees are refused for any reason. Upon any such termination of your account, you will remain obligated to pay all outstanding fees and charges relating to your use of the Livestream Service before termination.
6.b.ii. Limited Refund Policy. If you subscribed exclusively through online means, you may cancel and receive a full refund within (a) 30 days after purchase for annual plans; or (b) 5 days after purchase for monthly plans. To cancel and request a refund, please contact us through this form. The foregoing cancelation and refund rights are not available (a) to requests made after the specified periods; (b) to Users who have signed agreements with Livestream (e.g., managed accounts); or (c) to Users who have breached the terms of this Agreement.
6.b.iii. If you terminate these Terms, or if Livestream terminates your Premium Service account for cause (i.e., as a result of your breach of any obligations, covenants, representations, warranties, or terms in these Terms), Livestream reserves the right to charge you fees through the end of your subscription term; provided that you shall have access to the Livestream Service in exchange for such fees through the end of your subscription term. If Livestream terminates your use of any part or all of the Livestream Service for convenience prior to the completion of your subscription period, your sole remedy is a pro-rata refund of the purchase price paid for the unavailable service.
6.c. Effect of Termination. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, 3, 4.b.i.1, 4.d, 5, 6, 7, and 15 – 28.
7. Copyright Infringement Notification
7.a. If you are a copyright owner or an agent thereof (the “Copyright Owner”) and believe that any content on the Livestream Service infringes your copyrights, you may submit a notification pursuant to Title 17, United States Code, Section 512(c)(3), the Digital Millennium Copyright Act (“DMCA”). This notification of claimed infringement must be a written communication provided to the designated agent of Livestream that includes the following information:
7.a.i. A physical or electronic signature of a person authorized to act on behalf of the Copyright Owner of an exclusive right that is allegedly infringed.
7.a.ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
7.a.iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Livestream to locate the material.
7.a.iv. Information reasonably sufficient to permit Livestream to contact the Copyright Owner, such as an address, telephone number, and, if available, an electronic mail address at which the Copyright Owner may be contacted.
7.a.v. A statement that the Copyright Owner has a good faith belief that use of the material in the manner complained of is not authorized by the Copyright Owner, its agent, or the law.
7.a.vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the Copyright Owner of an exclusive right that is allegedly infringed.
7.b. Livestream’s registered designated copyright agent to receive notifications of claimed infringement is: Mr. Mark Kornfilt. His contact information is as follows:
195 Morgan Avenue
Brooklyn, NY, 11237, USA.
7.c. Only DMCA notices should go to the designated copyright agent; any other comments, requests, or other communications should be directed to Livestream customer service at firstname.lastname@example.org. Any notification of claimed infringement that does not comply with the DMCA’s requirements, is invalid.
7.d. If you receive notice from Livestream that your content has been taken down pursuant to a notification of alleged infringement and believe that this takedown is improper or incorrect, you may provide Livestream with a counter notification. To be valid, a counter notification must be a written communication provided to Livestream’s designated agent as mentioned in Section 7.2 that includes substantially the following:
7.d.i. Your physical or electronic signature.
7.d.ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
7.d.iii. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
7.d.iv. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, the jurisdiction of the Federal District Court for the Southern District of New York, and that you will accept service of process from the Copyright Owner who provided notification as mentioned in Section 7.a. or an agent of such person.
7.e. Livestream reserves the right to terminate without notice any User’s access to the Livestream Service if that User is determined by Livestream to be a “repeat infringer.” In addition, Livestream accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
8. Registration, Accounts and Passwords
8.a. If you become a registered User and create an account on the Livestream Service, you agree to be responsible and/or liable for maintaining the confidentiality of passwords or other account identifiers which you choose and all activities that occur under such password or account identifiers.
8.b. You agree to notify Livestream of any loss of your password or account identifiers and any unauthorized use of your password or account identifiers.
8.c. Without limiting anything in this Agreement, Livestream will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section 8.
9. Embeddable Player Feature
Livestream provides an embeddable player feature on the Livestream Service. Subject to the terms and conditions of these Terms, Livestream hereby grants you a limited, non-exclusive, freely revocable license to incorporate such embeddable player into your own websites, provided that you include a prominent link back to the Livestream Service on the pages containing the embeddable player. You hereby represent and warrant that you shall not to circumvent, disable or otherwise interfere with security related features of the embeddable player or features that prevent or restrict use or copying of any Material and third party Produced Content (including, without limitation, Audiovisual Content) or enforce limitations on use of the embeddable player or the Material and third party Produced Content (including, without limitation, Audiovisual Content) therein.
10. Search Functionality
The Livestream Service has certain functionality to search for and incorporate video and other content that is available on third party websites unrelated to Livestream (the “Search Function”). For clarity, the disclaimer of warranties in Section 15 applies to the Search Function. Livestream has no responsibility for any content found on such third-party sites, and that Livestream does not review, clear, or approve any such content. It is your sole responsibility to comply with any applicable terms and conditions of the third-party website operators when using such content. Additionally, as with any content uploaded by you to the Livestream Service, with respect to any content that you find on third-party websites through the Search Function, it is your sole responsibility to comply with applicable laws and to respect the rights of the owners and licensors of such content. Finding third-party content using the Search Function does not, in and of itself, give you any rights whatsoever to use such third party content in any way, and, without limiting the indemnification in Section 17, below, you hereby indemnify and hold harmless Livestream for any losses or liabilities arising out of your use of the Search Function or third party content.
11. Third-Party Websites
12.a. Certain Paid Plan Users will be able to connect accounts to new or existing Stripe accounts to enable donations from other Users (the “Donations Feature”). Paid Plan Users without a Stripe account will be re-directed to www.stripe.com in order to create a Stripe account. Paid Plan Users will have an option to disconnect their Stripe Account at any time to disable the Donations Feature.
12.b. Once the Donations Feature is enabled for a Paid Plan User’s account, a “Donate” button will appear on all of the Paid Plan User’s event pages or event embeds. Any viewer can click this button to open the Donations Feature pop-up form and donate to the Paid Plan User’s connected Stripe account. Users who donate will receive an email receipt confirming their donation amount. Transactions are processed by Stripe. Donation funds go directly to the connected Stripe account and are not passed through Livestream.
13. Special Terms for the Paid Service
13.a. Livestream will provide the uptime Service Commitment levels for the Livestream Service as set forth in the Service Level Agreement. Additionally, for support you may contact customer support via email at email@example.com. We will endeavor to respond to your support requests and inquiries within four (4) business hours of our receipt; our support business hours are 10:00AM-6:00 PM (EST), Monday through Friday excluding US holidays. Livestream does not provide live support for the Livestream Service, and all support requests must be made, and will be responded to by, email.
13.b. The Premium Service may include an ability to mark a particular piece of Produced Content “private,” including removing your Channel from the Livestream Guide at livestream.com, removing your Channel Page from livestream.com, restricting viewing of Produced Content in the Player Widget to only specific URLs that you have enabled, and preventing viewing of Produced Content from restricted geographical regions. While Livestream uses commercially reasonable efforts to respect such private designation, you understand that whether or not Produced Content is published or marked private by you, Livestream does not guarantee any confidentiality or privacy with respect to any of Produced Content.
13.c. The Premium Service includes the ability for you to sell Advertising Inventory in connection with your Produced Content. “Advertising Inventory” means any electronic advertising that you may embed or otherwise enable for display in conjunction with the Produced Content; provided, that (i) any such Advertising Inventory shall be subject to any specific policies regarding advertising (and the integration thereof with Produced Content) displayed in connection with the Livestream Service, (ii) your sale of the Advertising Inventory is subject to any guidelines for advertising that Livestream may implement, and (iii) all Advertising Inventory will not violate any Prohibited Uses. You shall retain all revenue received from advertisers for the sale of Advertising Inventory.
13.d. Subscriptions. In order to use the Premium Service, you agree to pay a recurring subscription fee to Livestream (“Subscription Fee”). Subscriptions automatically renew for successive terms (as selected by you) until cancelled by you as further described below.
13.d.i. Auto-Renewals. YOU MUST PAY THE INITIAL SUBSCRIPTION FEE PRIOR TO USING THE LIVESTREAM SERVICE. BY PURCHASING A SUBSCRIPTION TO THE LIVESTREAM SERVICE, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS OF THE SAME DURATION (E.G., MONTHLY, ANNUAL) UNLESS YOU CANCEL YOUR SUBSCRIPTION AS FURTHER DESCRIBED BELOW. YOU AUTHORIZE LIVESTREAM TO CHARGE THE PAYMENT METHOD THAT OUR SERVICE PROVIDER HAS ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION FEE PLUS ANY APPLICABLE TAXES. IF YOU PAY FOR YOUR SUBSCRIPTION ON A MONTHLY BASIS, THEN, DEPENDING ON YOUR SUBSCRIPTION TIER, WE WILL PROCESS YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION EVERY 31 DAYS, 32 DAYS, OR ON THE SAME DATE EACH MONTH. IF YOU PAY FOR YOUR CURRENT SUBSCRIPTION ON AN ANNUAL BASIS, THEN WE WILL PROCESS YOUR PAYMENT FOR ANY RENEWAL SUBSCRIPTION ON THE FIRST DAY OF THE RENEWAL TERM. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED BY LAW.
13.d.ii. Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION TO THE LIVESTREAM SERVICE AT ANY TIME, AFTER WHICH WE WILL NOT RENEW YOUR SUBSCRIPTION. TO CANCEL, COMPLETE THIS FORM. FOR THE AVOIDANCE OF DOUBT, EXCEPT AS SET FORTH IN SECTION 6.b.ii, YOU DO NOT HAVE A RIGHT TO TERMINATE THIS AGREEMENT FOR CONVENIENCE WITHIN A SUBSCRIPTION PERIOD. YOU ARE RESPONSIBLE FOR ALL FEES INCURRED THROUGH THE END OF THE CURRENT TERM OF YOUR SUBSCRIPTION PLAN.
13.d.iii. You May Need to Agree to Additional Terms or Agreements. You acknowledge that you may be required to agree to additional or superseding terms or agreements if your subscription is automatically renewed as described above. For example, if you would like a subscription to the Livestream Service that is different from Livestream’s standard subscription (i.e., a promotional subscription), then you may be required to agree to an additional set of terms.
13.d.iv. Your access to the Paid Service will not be established until Livestream has verified that the credit card or other payment information you provide Livestream for payment is accurate and that your credit card account or other payment method account is in good standing.
13.d.v. You are required to keep your billing information current, complete and accurate (such as a change in billing address, credit/debit card number or expiration date) and notify Livestream if your selected payment method is canceled (e.g., for loss or theft). You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your children, family, or friends). You agree to pay any outstanding balance in full within thirty (30) days of purchase of a particular product or service on the Livestream Service. Additionally, Livestream reserves the right to deactivate your account if payment is past due, regardless of the dollar amount. You are responsible for any overdraft fees charged to your payment account.
13.d.vi. You are responsible for paying any governmental taxes imposed on your use of the Livestream Service, including, but not limited to, sales, use or value-added taxes. To the extent Livestream is obligated to collect such taxes, the applicable tax will be added to your billing account.
13.d.vii. Livestream may impose an additional transaction fee based on transactions associated with Livestream Service, including a transaction fee applied to purchases from third parties. Such transaction fee will be disclosed to you prior to your agreement to the relevant transaction.
13.e. Free Trials. Notwithstanding anything to the contrary in these Terms, free trials to the Paid Service are provided, to the fullest extent permitted by law, “AS IS” and without any warranty of any kind. Livestream reserves the right to limit (i) the number of free trials per User and (ii) the features of the Paid Service for Free Trialers. Livestream may terminate all or any free trial at any time. At the end of a free trial, Livestream may delete Produced Content for any Free Trialer who does not subscribe to the Paid Service.
14. Bandwidth Limitations
We offer a certain amount of bandwidth to Users, as set forth on the Livestream Service. If we believe you are over-burdening our servers (e.g., consistently exceeding the 95th percentile of bandwidth consumed by users at your subscription plan level), we may require you to upgrade to the Premium Service, if you are a Free User, or a higher tier of the Premium Service, if you are already a Premium User.
TO THE FULLEST EXTENT PERMITTED BY LAW, CONTENT ON THE LIVESTREAM SERVICE, INCLUDING WITHOUT LIMITATION, MATERIALS, AND PRODUCED CONTENT, IS PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTY.
15.a. TO THE FULLEST EXTENT PERMITTED BY LAW, LIVESTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, AND SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE LIVESTREAM SERVICE AND DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIVESTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, AND SUPPLIERS DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (I) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (III) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE LIVESTREAM SERVICE, OR ANY PART THEREOF; (IV) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE LIVESTREAM SERVICE; (V) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA ON THE LIVESTREAM SERVICE; AND (VI) OTHER WARRANTIES RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS OF LIVESTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, OR SUPPLIERS.
15.b. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, LIVESTREAM MAKES NO WARRANTY THAT THE LIVESTREAM SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. THE LIVESTREAM SERVICE MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
15.c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LIVESTREAM OR THROUGH THE LIVESTREAM SERVICE WILL CREATE ANY WARRANTY. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE LIVESTREAM SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD-PARTY SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
15.d. You understand that when using the Livestream Service, you will be exposed to Produced Content from a variety of sources, and that Livestream is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Produced Content or other content. You further understand and acknowledge that you may be exposed to Produced Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Livestream with respect thereto. Livestream does not endorse any Produced Content or any opinion, recommendation, or advice expressed therein, and Livestream expressly disclaims any and all liability in connection with the Produced Content. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST LIVESTREAM WITH RESPECT THERETO AND AGREE TO INDEMNIFY AND HOLD LIVESTREAM, ITS OWNERS/OPERATORS, AFFILIATES, SUPPLIERS, AND/OR LICENSORS HARMLESS TO THE FULLEST EXTENT PERMITTED BY LAW REGARDING ALL MATTERS RELATED TO YOUR CONTENT AND ANY USE OF THE LIVESTREAM SERVICE THAT IS PROHIBITED UNDER SECTION 5.
16. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL LIVESTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS LIVESTREAM SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF: (I) THE LIVESTREAM SERVICE, YOUR ACCESS, USE OR INABILITY TO USE THE LIVESTREAM SERVICE; (II) ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE (INCLUDING LOSS PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE LIVESTREAM SERVICE); (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE LIVESTREAM SERVICE, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL IDENTIFIABLE INFORMATION STORED THEREIN, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE LIVESTREAM SERVICE BY ANY THIRD PARTY.
16.a. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL LIVESTREAM OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE LIVESTREAM SERVICE OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO LIVESTREAM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM AND ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
16.b. THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF LIVESTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.c. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SERVICES OR OTHERWISE BY THIRD PARTIES OTHER THAN LIVESTREAM AND RECEIVED THROUGH OR ADVERTISED ON THE LIVESTREAM SERVICE OR RECEIVED THROUGH ANY THIRD-PARTY SITES.
To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless Livestream, its officers, directors, employees, affiliates, agents, licensors, suppliers, successors, assigns, and their past and present officers, directors and employees, representatives and agents from and against any losses, claims, damages, liabilities, including legal fees and expenses, arising out of:
17.a. any claim due to or arising out of your violation of these Terms, including but not limited to a claim arising out of a breach of your representations or warranties made hereunder;
17.b. your use or misuse of or access to the Livestream Service;
17.c. your violation of any law, regulation or third party right, including without limitation any copyright, property, or privacy right; or
17.d. any claim that you or your Produced Content caused damage to a third party.
Livestream reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Livestream, and you agree to cooperate with Livestream’s defense of these claims.
18. Release for Disputes between Users
Livestream does not control the actions of its Users. If you have a dispute with one or more Users, to the fullest extent permitted by law, you release Livestream (and Livestream’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Livestream without restriction.
20. Waiver and Severability
The failure to require performance of any provision shall not affect either Livestream’s or your right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of these Terms 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.
21. Consent to Electronic Communications
22. Choice of Law and Forum
These Terms shall be governed and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules. If a lawsuit or court proceeding is permitted under these Terms, then you and Livestream agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located within New York County in the State of New York.
23. Dispute Resolution and Arbitration
23.a. Generally. In the interest of resolving disputes between you and Livestream in the most expedient and cost effective manner, you and Livestream agree that every dispute arising out of or in any way related to these Terms or your use of the Livestream Service will be resolved by binding arbitration, except as provided in this Section 23. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms or your use of the Livestream Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND LIVESTREAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
23.b. Exceptions. Despite the provisions of Section 23.a, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
23.c. Arbitrator. Any arbitration between you and Livestream will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Livestream.
23.d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or by electronic mail (“Notice”). Livestream’s address for Notice is: Livestream Legal, 195 Morgan Avenue Brooklyn, NY, 11237, USA and firstname.lastname@example.org. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Livestream may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Livestream must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Livestream will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Livestream in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
23.e. Fees. If you commence arbitration in accordance with these Terms, Livestream will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Livestream for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
23.f. No Class Actions. YOU AND LIVESTREAM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Livestream agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
23.g. Modifications to this Arbitration Provision. If Livestream makes any future change to this arbitration provision, other than a change to Livestream’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Livestream’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
23.h. Enforceability. If Section 23.f is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to these Terms.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
25. Entire Agreement
This is the entire agreement between you and Livestream relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or policies made by Livestream as set forth above.
26. No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
27. No Third Party Beneficiaries
The parties specifically disavow any desire or intention to create a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
The services are offered by Livestream, Inc., 195 Morgan Avenue, Brooklyn, NY, 11237, USA and email: email@example.com.
Notice Regarding Apple
If you are using our mobile applications on an iOS device, then the following terms apply. You acknowledge that these Terms are between you and Livestream only, not with Apple, and Apple is not responsible for the Livestream Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Livestream Service. If the Livestream Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Livestream Service. Apple is not responsible for addressing any claim by you or any third party relating to the Livestream Service or your possession or use of the Livestream Service, including: (a) product liability claims; (b) any claim that the Livestream Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Livestream Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Livestream Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 5 of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 5 of these Terms against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.