At the bottom of these Terms of Service, please enter your first and last name. This will signify your digital signature of these Terms and allow you to submit your order.
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 19th 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 20th of the first month through the 19th 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
19th 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