IsMyStreamUp Terms of Service

 

These General Terms of Service together with all Order Form(s) constitute the Terms of Service Agreement (“Agreement”) which is effective as of the Commencement Date (the date the Order Form was filled by Customer) by and between StreamGuys, Inc. d/b/a/ StreamGuys (“SG”, “IsMyStreamUp” or “StreamGuys”), a California corporation, and Customer. SG and Customer are collectively referred to as the "Parties" or individually as a “Party”.

 

Your Acceptance
To confirm your understanding and acceptance of the Agreement, digitally sign your name by typing it below the Terms of Service.

The Agreement is accepted by:
- digitally signing the Terms of Service, where this option is made available by StreamGuys in the user interface for access to the IsMyStreamUp Platform website;
- using the IsMyStreamUp Platform. Customer understands and agrees that StreamGuys will treat use of the IsMyStreamUp Platform as acceptance of these terms, as may be amended from time to time;
- entering into an Order Form with StreamGuys, which is governed by this Agreement.

 

1. DEFINITIONS

- “Acceptable Use Policy” – SG’s guidelines for acceptable uses of SG’s service, set forth on the SG

Website and updated from time to time.

- “Commencement Date” - the date upon which Customer ordered services from SG through the Order Form. Payment is collected on the Commencement Date. Services are also provisioned on the Commencement Date.

- “Customer Location” - a location designated in an Order Form for connection to the SG Network, if

outside a Datacenter Facility.

- “Datacenter Facility” – A location where SG maintains a presence for the physical housing of computer

and/or network equipment.

- “Online/Phone Order” – any order for Products or Services placed by telephone or email to SG which

requires only verbal/written consent, and accepted by SG.

- “Order Form” - any online form filled by Customer requesting services to these General Terms and Conditions and respective service-specific terms and conditions, detailing the Products or Services, the Term, Customer charges, the estimated Commencement Date and any other relevant terms agreed upon by the Parties.

- “Products or Services” - the products or services provided by SG (including, without limitation, use of the IsMyStreamUp platform) to Customer.

- “SG Network” - collectively, the fiber optic network, system capacity and related facilities (including,

without limitation, routers, switches and communication channels) owned or controlled by SG.

- “SG Website” –SG’s company websites, published at https://www.StreamGuys.com and https://ismystreamup.com.

- “Term” - the period of time in which SG provides Products or Services to Customer pursuant to an

Order Form.

 

2. STRUCTURE OF AGREEMENT

2.1. Order Forms. From time to time, the Parties will execute one or more Order Forms for SG to provide

Products or Services, each of which shall be governed by, and automatically incorporated by reference into,

this Agreement and shall be subject to these General Terms and Conditions.

2.2. Supplements. SG may provide Supplements which contain supplemental terms and conditions specific

to certain services provided by SG to Customer which include any Service Level Agreement applicable to

the services described therein. Any Supplement, when executed by the Parties, shall be governed by, and

automatically incorporated by reference into, this Agreement and shall be subject to these General Terms

and Conditions.

 

3. INVOICING AND PAYMENT

3.1. If a recurring charge (“Recurring Charge”) (e.g. Monthly Charge) is specified in an Order Form, Charge, etc.)

SG will invoice Customer for and Customer will pay Recurring Charge in advance for each Term.

SG will begin to invoice the Recurring Charge on the Commencement Date. Invoices for partial months will be pro-rated.

3.2. All Services will be Prepaid by Customer, SG will invoice Customer for and Customer will pay such Prepayment upon the Order Form Effective Date. If a Prepayment is for a portion of a Term, the amount of such Prepayment will be pro-rated to the end of the billing period, the 19^th of the month.

3.3. If applicable, SG will invoice Customer and Customer will pay such invoices for any additional charges

for Products or Services which are more fully described in the respective Order Form.

3.4. All invoices must be paid in accordance with their terms without setoff or deduction.

3.5. Unless otherwise specified, all payments must be made by Customer to SG in United States of America

Dollars via credit card.

3.6 If Customer payment is not received when due and SG determines that it is unable to collect on due payment, Services will be removed and User account deleted from IsMyStreamUp upon such determination.

3.7 If Customer increases services through Order Form, Customer will be charged instantly and automatically using the payment information Customer previously provided.

3.8 If Customer reduces services through Order Form, Customer will be credited in the form of a service credit. Customer will not receive monetary refund.

3.9 For Services ordered through Order Form, the initial rates and fees for such Services will be listed on

the Order Form. The rates and fees for Services ordered by Customer on an Order Form will remain in effect for thirty (30) days from the date of the Order.

Thereafter,rates and fees will be subject to change, at SG’s reasonable discretion, upon sixty (60) days’ prior written notice.

Notwithstanding the foregoing, there are no restrictions on SG’s right to modify its rates and fees for Services as to Orders not in effect prior to such changes.

3.10 If Customer wishes to dispute any charge billed to Customer by SG (a “Disputed Amount”), Customer

must submit a good faith claim regarding the Disputed Amount with documentation as may reasonably be

required to support the claim within ninety (90) days of receipt of the initial invoice sent by SG regarding the

Disputed Amount. If Customer does not submit a documented claim within ninety (90) days of receipt of the

initial invoice sent by SG regarding such Disputed Amount, notwithstanding anything in this Agreement to

the contrary, Customer waives all rights to dispute such Disputed Amount and Customer waives all rights to

file a claim thereafter of any kind relating to such Disputed Amount (and Customer also waives all rights to

otherwise claim that it does not owe such Disputed Amount or to seek any set-offs or reimbursements or

other amounts of any kind based upon or relating to such Disputed Amount).

3.11 The billing period is the 20^th of the first month through the 19^th of the second month. All charges will be pro-rated to these terms.

 

4. APPLICABLE TAXES

Each Party is fully responsible for the payment of any and all taxes required by law to be paid by that Party.

Customer will pay all taxes, governmental fees, and third-party charges related to the ownership and

operation of Customer’s Equipment and the activities of Customer at each Datacenter Facility. Without

limiting the foregoing, Customer is responsible for timely paying in full all sales, use, transfer, privilege,

excise, and all other taxes and duties, whether international, national, state or local, however designated,

now in force or enacted in the future, which are levied or imposed by reason of the performance by SG or

Customer under this Agreement or by Customer with respect to its operations and use of the Datacenter

Facility and Customer’s Equipment, including any leasehold/license pass thru items, if any (“Taxes”); but the

term “Taxes” will exclude income taxes on SG’s profits which may be levied against SG. The rates and fees

on an Order Form (as well as the list prices for the Online/Phone Orders) are exclusive of the Taxes, which

Customer will also be responsible for paying at the same time it pays the amounts listed on the Orders. Any

applicable Taxes that SG must collect and remit which must be paid directly to SG will be stated separately

on each invoice. In addition, Customer’s Equipment will not be construed to be fixtures, and Customer is

responsible for preparing and filing any necessary return with, and paying any and all Taxes separately

levied or assessed against Customer’s equipment to any governmental, quasi-governmental or tax

authorities by the date such payments are due.

 

5. TERM OF AGREEMENT AND TERMINATION

5.1. This Agreement commences on the Effective Date and continues through the latest expiration of all

Order Form Term(s) subject to this Agreement, unless earlier terminated as provided herein.

5.2. The Term for each Order Form shall begin on the Commencement Date of the related Product or

Service and shall remain in effect until the expiration of the period so specified. Upon the expiration of a

term set forth on an Order Form, such Order Form will renew for successive one (1) month terms

unless written notice of non-renewal is provided by either Party upon at least ninety (90) days prior written

notice.

5.3. Notwithstanding anything in this Section 5 to the contrary, each Order Form which contains a one (1)

month Term shall renew for consecutive one (1) month Terms, unless written notice of non-renewal is

provided by either Party, upon at least thirty (30) days prior written notice.

5.4. SG may terminate this Agreement as to any affected co-location services if any portion of the

Datacenter Facility in which the affected co-location services are located becomes subject to a

condemnation proceeding or is condemned, SG’s possession is otherwise terminated or abated, or SG

cannot provide Customer with the access to the affected Datacenter Facility as contemplated herein for a

period exceeding thirty (30) days.

 

6. DEFAULT

Events of Default: The occurrence of any of the events listed below shall be considered an event of default,

which gives the non-defaulting Party the right to terminate the Agreement or affected Order Form(s) by

written notice following the expiration of any stated cure periods and pursue its remedies under the

Agreement:

- Customer fails to fully pay any of the payments

- Except as provided in clause (a), above, the breach of any material term or condition of this Agreement

(including Order Forms or Supplements) and such breach remains uncured thirty (30) days after

delivery to the breaching Party of written notice of such breach. If the breach is of a nature or involves

circumstances reasonably requiring more than thirty (30) days to cure, the time period may be extended

provided the breaching Party proceeds diligently to cure the breach;

- The filing of a petition in bankruptcy or a general assignment for the benefit of creditors;

- Customer defaults under the terms of any other agreement, Supplement or Order Form between the

parties whether such other agreement is executed prior or subsequently to the execution of this

Agreement.

- If Customer is in default, as set forth above, SG may at it’s own discretion, terminate services five (5)

days after Customers receives written notice of such failure.

- If Customer is in default under any obligation of this Agreement or any Sales Order, Customer will be in default of all Sales Orders and this Agreement.

 

7. REPRESENTATIONS AND WARRANTIES

7.1. Warrants. SG warrants that any Products and Services to be provided to Customer will be at a

professional level of quality conforming to generally accepted industry standards and in compliance in all

material respects with all applicable laws and regulations. EXCEPT AS OTHERWISE EXPRESSLY

PROVIDED IN THIS AGREEMENT, SG DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL

OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY AND ALL WARRANTIES OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7.2. Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good

standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter

into and perform its obligations under this Agreement and all Order Forms, (iii) it will comply with all

applicable federal, state and local laws, statutes, rules and regulations in connection with the provision and

use of the Products and Services and (vi) this Agreement and all Order Forms, when executed, are the

legal, valid and binding obligation of such Party.

 

8. LIMITATION OF LIABILITY; INDEMNIFICATION

8.1. THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION

WITH AN ORDER FORM, EXCLUDING EARLY TERMINATION CHARGES, IS LIMITED TO AN AMOUNT

EQUAL ONE TIMES (1X) THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE

TERM SET FORTH THEREIN. THE TOTAL LIABILITY OF SG FOR DAMAGES ARISING OUT OF OR IN

CONNECTION WITH AN ORDER FORM IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL

CHARGES PAYABLE BY CUSTOMER DURING THE FIRST YEAR OF THE TERM SET FORTH

THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY,

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL,

INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF

PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF

TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF

SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN

ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY

ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY

PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO

CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS,

RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE

PERFORMED BY SG, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT,

BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY

BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.

8.2. SG agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and

contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable

attorney’s fees and expenses) by reason of any claims or actions by third parties for (i) bodily injury or death,

and damage, loss or destruction of any real or tangible personal property, which third party claims arise out

of or relate to SG’s gross negligence or willful misconduct or (ii) infringement or misappropriation by SG of

any intellectual property rights under this Agreement.

8.3. Customer agrees to indemnify, defend and hold SG, its officers, directors, employees, agents and

contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable

attorney’s fees and expenses) by reason of any claims or actions by third parties, including those of

customers of Customer, for (i) bodily injury or death or damage, loss or destruction of any real or personal

property (including without limitation the property of SG), which third party claims arise out of or relate to

Customer’s gross negligence or willful misconduct, (ii) infringement or misappropriation by Customer of any

intellectual property rights under this Agreement, or (iii) Customer’s or its customer’s use of the Products or

Services, including without limitation, defamation, libel, slander, obscenity, pornography, or violation of the

rights of privacy or publicity, or spamming or any other tortious or illegal conduct, or (iv) any harm or claims

arising out of acts of omission of any customers of Customer or any third parties using Customer’s

equipment or service that is subject of this Agreement.

8.4. Customer agrees that SG is not responsible for loss or damage to equipment and property stored or

installed in a SG site. Customer agrees to maintain insurance coverage on equipment and property stored or

installed at each SG site which covers any type of loss and includes a waiver of subrogation clause. SG

shall not be liable for damage to, or loss of any of Customer equipment resulting from any cause, other than

SG’s negligence or willful misconduct and then only in an amount not to exceed the replacement value of

the damaged equipment, not to exceed the limits set forth in Section 8.1.

8.5. Customer shall have no right or interest in any SG-supplied equipment other than the right to use such

equipment during the specified term while payments are current. Customer shall be liable to SG for any

damage to such equipment caused by Customer or Customer’s representatives, agents or employees.

 

9. CONFIDENTIALITY; PUBLICITY

9.1. Confidentiality. Each Party agrees that the terms of this Agreement and all information furnished to it

by the other Party, including maps, pricing, financial terms, network routes, design information,

methodologies, specifications, locations or other information to which it has access under this Agreement,

are deemed the confidential and proprietary information or trade secrets (collectively referred to as

“Proprietary Information”) of the Disclosing Party and will remain the sole and exclusive property of the

Disclosing Party (the Party furnishing the Proprietary Information referred to as the “Disclosing Party” and

the other Party referred to as the “Receiving Party”). Each Party will treat the Proprietary Information that the

Receiving Party either knows or reasonably should know to be confidential to the Disclosing Party and the

contents of this Agreement in a confidential manner and, except to the extent necessary in connection with

the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the

same to anyone other than its employees or third parties identified within an Order hereunder on a need to

know basis and who agree to be bound by the terms of this Section, without the written consent of the

Disclosing Party. Information will not be deemed Proprietary Information if it (i) becomes publicly available

other than through the actions of the Receiving Party; (ii) is independently developed by the Receiving Party;

or (iii) becomes available to the Receiving Party without restriction from a third party. If the Receiving Party

is required by a governmental or judicial law, order, rule, regulation or permit to disclose Proprietary

Information, it must give prompt written notice to the Disclosing Party of the requirements of such disclosure

and cooperate fully with the Disclosing Party to minimize such disclosure, and disclosure after such notice

shall not be a breach hereof.

9.2. Publicity. Notwithstanding anything herein to the contrary, neither party may release a public statement

announcing the Agreement (“Press Release”) without the prior written consent of the other party.

 

10. ASSIGNMENT

Neither party may assign or transfer its rights or obligations under this Agreement without the prior written

consent of the other party, which consent may not be unreasonably withheld, except that either party may

assign this Agreement upon notice and without consent to a person, firm, corporation, partnership,

association, trust or other entity (i) that controls, is controlled by or is under common control with Customer

or (ii) into which it is merged or consolidated or which purchases all or substantially all of its assets; provided

that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment.

Any assignment or transfer without the required consent will be void and will be considered a material

breach of this Agreement. Upon any permitted assignment, the assigning party will remain jointly and

severally responsible for the performance under this Agreement, unless released in writing by the other

party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their

respective successors and permitted assigns.

 

11. FORCE MAJEURE

Neither party will be considered in breach of this Agreement nor liable under this Agreement for any delays,

failures to perform, damages or losses, or any consequence thereof, caused by or attributable to an event of

“Force Majeure,” which is defined as any cause beyond the reasonable control of the party claiming relief,

including without limitation the action by a governmental authority (such as a moratorium on any activities

related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or

restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning,

epidemic, war, act of terrorism, riot, civil disturbance, act of God, sabotage, fiber cut caused by a third-party

or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other

agreement obtained by SG to construct and operate its facilities or network.

 

12. NOTICES

All notices, including but not limited to, demands, requests and other communications required or permitted

hereunder (not including invoices) must be in writing and will be deemed given: (i) when delivered in person,

(ii) one (1) business day after deposit with an overnight delivery service for next day delivery, or (iii) three (3)

business days after deposit in the United States mail, postage prepaid, registered or certified mail, return

receipt requested, and addressed to the recipient Party at the address set forth on the signature page

hereof. In addition, SG shall have the right to send Customer notices, other than notices for default or

termination, to Customer’s email address as contained on SG’s customer contact list. Such email notification

is deemed delivered on the day sent unless returned to sender.

 

13. MISCELLANEOUS

13.1. Governing Law; Jurisdiction. This Agreement will be interpreted and construed in accordance with

the internal laws of the State of California without giving effect to its principles of conflicts of laws. Any legal

proceeding arising out of, or relating to this Agreement, will be brought in a United States District Court, or

absent federal court jurisdiction, in a state court of competent jurisdiction.

13.2. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations

of indemnification, confidentiality and limitations on liability will survive the expiration, termination or

rescission of this Agreement and continue in full force and effect.

13.3. No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in this

Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or

permitted assigns.

13.4. Relationship of the Parties. The relationship between the Parties hereunder is not that of partners or

agents for one another and nothing contained in this Agreement may be deemed to constitute a partnership,

joint venture or agency agreement between them.

13.5. Remedies Not Exclusive. Except as otherwise expressly provided, the rights and remedies set forth

in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.

13.6. Headings; Separability. The headings in this Agreement are strictly for convenience and do not

amplify or limit any of the terms, provisions or conditions hereof. In the event any term of this Agreement is

held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such

term nor the validity of the remaining terms of this Agreement will be in any way affected.

13.7. No Implied Waiver. No failure to exercise and no delay in exercising, on the part of either Party, any

right, power or privilege hereunder will operate as a waiver, except as expressly provided herein.

13.8. Counterparts. This Agreement may be executed in counterparts, including by facsimile transmission,

each of which when executed and delivered is an original, but all the counterparts together constitute the

same document.

13.9 Precedence. Except as may be set forth herein, this Agreement supersedes all previous and

contemporaneous written and oral representations, understandings, or Agreements related to the subject

matter herein and shall prevail notwithstanding any variance with terms and conditions of any Order Form

submitted, unless otherwise agreed to in writing by both Parties.

13.10 Production On Site. Client, not SG, is responsible for source acquisition on site, upload capacity to meet required need of uninterrupted source signal, and production and source quality.
13.11 Failure to Alert SG is not responsible for lost revenue or other losses due to a downed stream whether Customer was notified by IsMyStreamUp or not.

13.12 Traffic From IsMyStreamUp. SG is not responsible for additional costs from additional resources used at the streaming server. IsMyStreamUp will make a http request to the monitored stream at the interval chosen by Customer.

 

 

14. ACCEPTABLE USE

14.1. Acceptable Use. Customer will at all times comply with and conform its use of the Service to

SG’s Acceptable Use Policy set forth at the SG Website, as updated from time to time, subject to notice to Customer of any material changes. In the event Customer materially violates the SG Acceptable Use Policy where SG determines in its reasonable discretion that there is potential harm to its Network or business, SG shall have the right to immediately suspend Service. In other cases of violation of the Acceptable Use Policy, SG will provide notice and opportunity to cure, to the extent SG deems reasonably appropriate, depending on the nature of the violation, the availability of the Customer and whether or not there has been a repeat violation. SG, in its reasonable discretion, shall reenable the Service upon satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future.

 

14.1 Stream Access. Customer will only monitor streams which Customer has permission to monitor.

 

15. RESTRICTIONS

Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly

or indirectly, any regulated item or information to anyone in connection with this Agreement without first

complying with all export control laws and regulations which may be imposed by any government within

whose jurisdiction Customer operates or does business.

 

16. EARLY TERMINATION POLICY

16.1. If an Order Form is terminated prior to expiration by reason of: (i) Customer termination (“Termination

for Convenience”), if such termination is not an exercise of Customer’s rights or remedies under the

Agreement, or (ii) a Customer Event of Default for failure to pay any payment, as provided, herein, then, in

addition to all other sums due and owing, Customer agrees to an “Early Termination Policy”.

16.2. Early Termination Policy. For service terminated prior to the end of the Term, Customer will not receive a refund.  Service will be made available until the end of the billing period, the 19^th of the month.

 

17. ENTIRE AGREEMENT; AMENDMENT; EXECUTION

This Agreement, including all Order Forms, Supplements and addenda attached hereto is the entire

agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior

negotiations, understandings and agreements, whether oral or written. This Agreement may be amended

only by a written instrument executed by the Parties. This Agreement may be executed in multiple

counterparts, all of which taken together constitute one and the same instrument. This Agreement may be

executed by facsimile. The Parties have executed this Agreement as of the last date of execution below.

 

Customer Signature and Date:

 

 

Address notices for StreamGuys:

 

StreamGuys

P.O. Box 828

Arcata, CA 95518