(i) the MYSTREAM software programs and related documentation being installed or used by you on any of your devices (the “Software”), and/or
(ii) any of the services enabled by the Software (the “Services”).
IF AT ANY TIME YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS, YOU SHALL NOT USE THE SOFTWARE OR SERVICES AND MUST IMMEDIATELY TERMINATE YOUR USE OF THE SOFTWARE AND ALL SERVICES.
1.1. This paragraph is intended to apply to you if you have downloaded the Software from the Apple App Store.
2.1. Content transmitted by the use of the Software and Services is entirely the responsibility of the person from whom such Content originated.
2.2. You use the Software and Services at your own risk and understand that by using the Software or any of the Services, you may be exposed to Content that is offensive, harmful to minors, indecent or otherwise objectionable.
2.3. Any use or reliance on any Content is solely at your own risk.
2.4. MYSTREAM does not endorse any Content and expressly disclaims any and all liability in connection with any and all Content transmitted or displayed using the Software and/or Services. You hereby release and discharge the MYSTREAM Parties (as defined below) from any and all claims and demands arising out of or relating to any Content.
2.5. You acknowledge and agree that you are solely responsible for your conduct and any Content that you transmit or display through the Software or Services and that MYSTREAM (and Apple if you downloaded the Software from the Apple App Store) is not responsible to you or any third party in connection with any Content.
2.6. MYSTREAM reserves the right (but not the obligation) to remove, edit or refuse to transmit any Content for the purpose of enforcing the Terms and Conditions, or for any other reason in MYSTREAM’s sole discretion, but does not regularly review Content.
2.7. You further agree to pay for all royalties, fees, and any other monies owing any person by reason of any of your Content. In addition, you represent, warrant and agree that: (a) you are the creator and owner of or have the necessary rights to transmit or display the Content; and (b) the Content you transmit or you display does not and will not:
(i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, mask work right, moral right, privacy right, right of publicity, trade dress and service mark right, goodwill, or any other intellectual property or proprietary right as may now exist or hereafter come into existence,
(ii) require MYSTREAM to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties,
(iii) result in a breach of contract between you and a third party or will not be in violation of any applicable law or regulation,
(iv) contain any information that is confidential or proprietary to a third party, or (v) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
2.8. VIOLATORS OF THESE THIRD-PARTY RIGHTS MAY BE SUBJECT TO CRIMINAL AND CIVIL LIABILITY. MYSTREAM RESERVES ALL RIGHTS AND REMEDIES AGAINST ANYONE WHO VIOLATES ANY OF THE PROVISIONS OF THE TERMS AND CONDITIONS.
3. GRANT OF RIGHTS TO MYSTREAM
3.1. If you transmit or share your Content in the Services or otherwise share your Content with or link your Content to the Services, for example, through Reference Sites or other third-party applications connected to your MYSTREAM account, you represent and warrant that you have all rights necessary to grant, and you hereby expressly grant, to MYSTREAM, its licensors and other MYSTREAM partners a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, adapt, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, transmit, communicate to the public, make available, make derivative works of, and otherwise exploit and use, all such Content and any name, voice, image and/or likeness as contained in your Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Software and Services and MYSTREAM’s (and its successors’ and affiliates’) businesses, including without limitation for promoting and redistributing part or all of the Software or Services (and derivative works thereof) in any media formats and through any media channels. For clarity, the rights granted by you in this Section to MYSTREAM include the right to reproduce your Content on a royalty-free basis and that MYSTREAM will have no obligation to pay royalties to you or any third party involved in the creation of your Content. Further, you understand that the license grants by you to MYSTREAM hereunder will survive any termination of your use of the Software or Services.
3.2. Any Content transmitted by you will be considered non-confidential and non-proprietary, and treated as such by MYSTREAM, and may be used by MYSTREAM in accordance with these Terms and Conditions without notice to you and without any liability. You waive any rights to prior inspection or approval of any marketing or promotional materials related to any Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any Content you transmit or display through the Services.
3.3. You agree and acknowledge that Content you transmit through the Services may be distributed, viewed and accessed and commented by other users of the Software or Services and that MYSTREAM will not be held liable for any unauthorized use of Content or any comment thereon by any person.
4. LICENSE GRANT
4.1. Subject to your compliance with the Terms and Conditions, MYSTREAM grants you a personal, limited, non-commercial, non-exclusive, non-sublicensable, non-assignable, non-transferable, freely revocable license to download, install and/or use one (1) copy of the Software, in object code format, only on your personal computers or personal mobile devices (if you have downloaded the Software from the Apple App Store, then only on your Apple computer, iPhone, iPod touch, iPad or iWatch) (each, a “Device”) for the sole purpose of personally using the Services through use of the Software, and if you have downloaded the Software from the Apple App Store, as permitted by the Usage Rules set forth in the App Store Terms of Service as of the date hereof.
5.1. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
5.2. The Software includes trade secrets and information that is confidential and proprietary to MYSTREAM and you agree to take all necessary actions to protect the confidentiality of such information.
5.3. All ownership rights in the Software and Services, including any related documentation and any new releases, modifications, and enhancements thereto belong solely to MYSTREAM and its licensors, if any, including all intellectual property rights therein.
5.4. The Software is licensed, not sold. Title does not pass to you. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right. MYSTREAM hereby expressly reserves all rights in the Software and Services which are not expressly granted to you hereunder.
6. UNITED STATES SERVICES
6.1. MYSTREAM makes no representations that the Services are appropriate or available for use in any location outside the United States. Those who access or use the Software and/or Services from other jurisdictions are entirely responsible for compliance with all local laws.
7. PREMIUM SERVICES
7.1. From time to time in its sole discretion, MYSTREAM may provide additional features and/or Services that you pay for (“Premium Services”). MYSTREAM may also offer from time to time in its sole discretion, certain Premium Services for free, whether on a limited basis, for a trial period or otherwise. Unless expressly stated otherwise, references to the Services in the Terms and Conditions include the Premium Services.
(i) From time to time in its sole discretion, MYSTREAM may provide you with a Premium Service that allows you to connect to recipients outside of the Service from your Device (“Free Voice Premium Services”).
(ii) Free Voice Premium Services are provided at no cost to you and are for personal use only. MYSTREAM may limit the amount of call time available per call or for all calls. If MYSTREAM puts in place any such limit, once an applicable limit set by MYSTREAM has been reached, the Free Voice Premium Services may no longer be available to you. In addition, availability of the Free Voice Premium Services may be limited to certain countries or other geographies as MYSTREAM may determine from time to time. MYSTREAM reserves the right to change the terms of, and any fees associated with, the Free Voice Premium Services at any time without prior notice to you.
(iii) Use of the Free Voice Premium Services is for individual use only in accordance with the Terms and Conditions. You agree to use the Free Voice Premium Services only in accordance with the Terms and Conditions and not to abuse the terms of any offer regarding the Free Voice Premium Services. By way of example and without limitation, you agree not to: (a) use for telemarketing or call center operations; (b) resell minutes; (c) call numbers (whether singly, sequentially or automatically) to generate income for yourself or others as a result of merely placing the call; or (d) make unusual calling patterns inconsistent with normal, individual use, for example, regular calls of short duration or calls to multiple numbers in a short period of time. Other practices may be relevant in determining whether use of the Free Voice Premium Services is in accordance with the Terms and Conditions and MYSTREAM reserves the right to take any unlawful, prohibited, abnormal or unusual activity into account in making its determination.
(iv) MYSTREAM may, as part of the technical setup of the Free Voice Premium Services, pair you with one or more phone numbers. These phone numbers may be shared by multiple MYSTREAM users. You expressly acknowledge and agree that this pairing of phone numbers with you shall not constitute a transfer of property or sale of numbering rights by MYSTREAM to you. As a result, you will not be entitled to claim any such rights to these phone numbers. This means, without limitation, that you may not port-out any such phone number to any third party.
(v) Free Voice Premium Services do not support Emergency Services, including calls to 911, and are not a replacement for your primary telephone service. See Section 15 above.
7.2. If you purchase any Premium Services, you hereby agree to pay all charges to your account, including applicable taxes, in accordance with billing terms in effect at the time the charges are payable and whether charged by MYSTREAM or the Application Store.
7.3. You agree to abide by any relevant terms of service or other legal agreement that governs your use of a given payment processing service and/or method.
7.4. If you purchase Premium Services on a subscription basis, you acknowledge and agree that this is a recurring payment and payments shall be made by the payment method and payment intervals you have selected, until the subscription for the Premium Services is terminated.
7.5. You agree that if you purchase Premium Services through an Application Store, all payment related questions, issues, disagreements and/or disputes shall be handled in accordance with the terms of service or other legal agreement that governs your use of a given payment processing service and/or method, and in no event will MYSTREAM have any responsibility in connection with any of the foregoing.
7.6. You may request a full refund for any Premium Service purchased from an Application Store if permitted by, and pursuant to the refund rules of, the Application Store.
8. UTILIZATION OF USER’S DEVICE
8.1. If your use of the Software or Services is dependent upon the use of bandwidth owned or controlled by a third party, you acknowledge and agree that your license to use the Software is subject to your obtaining consent from the relevant third party for such use and by using the Software you warrant that you have obtained such consent.
8.2. In addition, you warrant that you own the Device to which you are downloading the Software, or that you have the legal right to control the use of that Device.
8.3. You further agree to ensure that any other person whom you permit to use the Software or Services on your Device will do so in accordance with the Terms and Conditions.
8.4. You must delete any Software from the Device if you sell the Device, or if you cease to have the legal right to control use of the Device.
9. SERVICES UPDATE
9.1. MYSTREAM may, without prior notice, stop providing the Software, features of the Software, and/or any of the Services, to you or to users generally, or create usage limits for the Software or any of the Services.
9.2. MYSTREAM, in its sole discretion, reserves the right to add additional features or functions, or to modify or provide programming fixes, updates and upgrades, to the Software or Services without notice.
9.3. MYSTREAM has no obligation to make available to you any additional features or functions or any modifications, updates, support, maintenance or subsequent versions of the Software or any of the Services.
9.4. You may have to agree to a renewed version of some or all of the Terms and Conditions in the event you want to download, install or use any additional features or functions or any modifications, updates or new versions of the Software or Services.
9.5. You acknowledge that MYSTREAM may automatically issue any additional features or functions or modifications, updates or upgraded versions of the Software or Services and, accordingly, may modify, update or upgrade the version of the Software or Services that you are using or have installed on your Device. You hereby agree that your Device may automatically request and/or receive such modifications, upgrades or updates.
10.1. You may use the Software solely for purposes of enabling you to use and enjoy the Services, and only as permitted by the Terms and Conditions. You only obtain a license to use the object code version of the Software. You shall not
(i) copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software or any of the Services;
(ii) incorporate any portion of the Software of Services into your own programs or compile any portion of the Software in combination with your own programs or transfer it for use with another service or program;
(iii) sublicense, sublease, lease, lend, assign, sell, license, distribute, rent, export, re-export or grant other rights in the Software or Services and any attempt by you to take such action shall be void;
(iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software or any of the Services by any means whatsoever;
(v) remove, obscure or alter any copyright and/or other proprietary notices contained on or in or otherwise connected to the Software or any of the Services;
(vi) use the Software or any of the Services to create or proliferate a virus or to circumvent any copy protection or other digital rights management mechanism.
10.2. You further represent and agree that you shall not
(i) use the Software or any of the Services in violation of any applicable law or for any illegal or unauthorized purpose,
(ii) use the Software or any of the Services in any manner which could damage, disable, overburden or impair any of the Services,
(iii) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Software or any of the Services in a manner that sends more request messages to the MYSTREAM servers than a human can reasonably produce in the same period of time manually;
(iv) transmit invalid data, worms, viruses or any code of a destructive nature,
(v) transmit spam, chain letters, materials related to any political campaigns, commercial solicitations, mass mailings, or any form of spam or other unsolicited texts or emails;
(vi) display, transmit or share any content consisting of data, text, sounds, audio, pictures, photos, video, sound recordings, musical works, narration, Broadcast Content (as defined in Section 20 below), works of authorship and/or any type of materials, information or communications (collectively, “Content”) deemed unlawful, harmful, threatening, pornographic, obscene, sexually explicit, abusive, racially or ethnically or otherwise offensive, libelous or defamatory, infringing, invasive of personal privacy or publicity rights, harassing, bullying, depicting or inciting violence (including suicide), hate speech, humiliating to other people (publicly or otherwise), profane, injurious or otherwise objectionable, or any Content that encourages conduct that would be considered a criminal offense or bring forth civil liability,
(vii) attempt to hack, destabilize, adapt or otherwise interfere with MYSTREAM’s website, the Software (or its source code) or any of the Services, or alter another website or mobile app so as to falsely imply that it is affiliated with MYSTREAM,
(viii) collect or harvest any personally identifiable information, including account names, from the Software or any of the Services,
(ix) use a false phone number or email, or impersonate another person or entity, or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity; or
(x) use or access any of the Services by any means other than through the interface provided by MYSTREAM.
11. LIMITATIONS OF LIABILITY
11. LIMITATIONS OF LIABILITY
11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MYSTREAM PARTIES BE LIABLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES OF ANY NATURE, INCLUDING WITHOUT LIMITATION ANY DAMAGES OR LOSSES FOR LOST REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS OR DEVICE OR COMPUTER FAILURE OR MALFUNCTIONARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE AND/OR ANY OF THE SERVICES, THE TERMS AND CONDITIONS OR THE PERFORMANCE, SUSPENSION, TERMINATION OR BREACH HEREOF, EVEN IF MYSTREAM OR ANY OTHER MYSTREAM PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE MYSTREAM PARTIES EXCEED THE AMOUNT YOU PAID TO MYSTREAM FOR ANY PRODUCTS OR SERVICES PURCHASED FROM MYSTREAM ON ANY OF THE SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM.
11.2. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. As some jurisdictions do not allow some of the exclusions or limitations set forth above, some of these exclusions or limitations may not apply to you. In such event the liability of the MYSTREAM Parties will be limited to the maximum extent possible under applicable law. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS, SOFTWARE, SERVICES OR CONTENT SOLD OR PROVIDED BY THIRD PARTIES AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE SERVICES.
12.1. YOU AND MYSTREAM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY OF THE SERVICES OR SOFTWARE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If you downloaded the Software from the Apple App Store, you further acknowledge that Apple has no responsibility for addressing any claims relating to the Software or Services or your possession and/or use of the Software or Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Software or Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
13.1. YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, MYSTREAM, ITS LICENSORS, ITS AGENTS, ITS PARTNERS, AND ITS AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND SUPPLIERS (INCLUDING MYSTREAM, COLLECTIVELY THE “MYSTREAM PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, OBLIGATIONS, ACTIONS, LOSSES, LIABILITY, DAMAGES AND COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF (A) YOUR VIOLATION OR BREACH OF ANY TERM OF THE TERMS AND CONDITIONS OR ANY APPLICABLE LAW, RULE OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) YOUR VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, OR (C) YOUR USE OR MISUSE OF THE SOFTWARE AND/OR ANY OF THE SERVICES, OR (D) YOUR CONTENT OR OTHER COMMUNICATION DISPLAYED OR TRANSMITTED BY MEANS OF THE SOFTWARE AND/OR ANY OF THE SERVICES, OR (E) ANY OTHER PARTY’S ACCESS AND USE OF THE SOFTWARE, SERVICES AND/OR CONTENT WITH YOUR PHONE NUMBER OR USERNAME, OR (F) ANY TAXES RELATED TO YOUR PURCHASE AND/OR USE OF ANY OF THE SERVICES (OTHER THAN TAXES BASED ON THE INCOME OF MYSTREAM).
13.2. If you downloaded the Software from the Apple App Store, you acknowledge that, in the event of any third party claim that the Software or Services or your possession and use of the Software or Services infringes any third party’s intellectual property rights, as between MYSTREAM and Apple, MYSTREAM, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. MYSTREAM reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify MYSTREAM, and you agree to cooperate with MYSTREAM’s defense of these claims. You agree not to settle any matter without the prior written consent of MYSTREAM.
14.1. The Software and Services are provided to you “AS IS” and “AS AVAILABLE” with no warranties.
14.2. To the maximum extent permitted by law, the MYSTREAM Parties hereby disclaim all warranties, terms, and conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including, without limitation, warranties, terms or conditions of merchantability, fitness for a particular purpose, satisfactory quality, correspondence with description, title, non-infringement, and accuracy of information generated.
14.3. You further acknowledge that the MYSTREAM Parties (and if you downloaded the Software from the Apple App Store, Apple) have no obligation whatsoever to furnish any maintenance or support services with respect to the Software and/or Services.
14.4. THE MYSTREAM PARTIES DO NOT WARRANT THAT THE SERVICES OR THE CONTENT DISPLAYED OR TRANSMITTED ON OR THROUGH ANY OF THE SERVICES, WILL BE UNINTERRUPTED, UP-TO-DATE, COMPLETE OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
14.5. THE MYSTREAM PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS FROM THE USE OF, THE SOFTWARE OR SERVICES.
15. GROUNDS OF THE BARGAIN
15.1. YOU ACKNOWLEDGE AND AGREE THAT MYSTREAM HAS OFFERED ITS SOFTWARE AND SERVICES AND SET ITS PRICES IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MYSTREAM, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MYSTREAM. MYSTREAM WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE OR SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
16. GROUNDS OF THE BARGAIN
16.1. The license to use the Software and Services is not valid in any jurisdiction where prohibited. The Software and Services are intended solely for users who are eighteen (18) years of age or older, and any registration, use or access to the Software or Services by anyone under eighteen (18) is unauthorized, unlicensed, and in violation of the Terms and Conditions.
16.2. MYSTREAM may terminate your account, delete any content or information that you have posted on the Services, and/or prohibit you from using or accessing the Software or Services (or any portion, aspect or feature of the Services) for any reason or for no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under the required age in the prior sentence.
16.3. If you are under the age of majority in your jurisdiction you may not use the Software and Services.
16.4. The Software and Services are not intended for use by any user previously removed from any of the Services by MYSTREAM.
17.1. Termination by You. You may terminate your use of the Services at any time by uninstalling and deleting the Software from all of your Devices. If you have subscribed to any Premium Services, you agree that you are solely responsible for directly terminating all payment obligations you may have with any Application Store and/or payment processing service in connection with the Premium Services.
17.2. Termination by MYSTREAM. Without limiting any other remedies, MYSTREAM may modify, limit, suspend, discontinue or terminate any of the Terms and Conditions and/or your use of all or any part of the Software and/or Services, with immediate effect, automatically, with or without notice and without recourse to the courts or other tribunals, for any reason or for no reason, including without limitation if MYSTREAM believes that you are
(i) in breach of any of the terms of any of the Terms and Conditions,
(ii) creating problems or legal liabilities (actual or potential),
(iii) delinquent with respect to any charges due for a Premium Service,
(iv) infringing a third party’s intellectual property rights, or
(v) (v) engaging in fraudulent, immoral or illegal activities.
17.3. You agree that MYSTREAM is under no obligation to provide the Services, including without limitation any Premium Services, and that no MYSTREAM Party shall be liable to you or to any other party for any limitation, suspension, discontinuance, termination or modification of the Software and/or any of the Services.
18. THIRD PARTIES
18.1. The Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third-party software or technology that is incorporated in the Software falls under the scope of this Agreement.
19. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
19.1. The Services may include links or references to third-party web sites or applications offering products or services, including games, applications, third party shopping merchants, images, special offers, or other events or activities, that are operated and maintained by other persons and/or that are not owned by MYSTREAM (“Reference Sites“). The Terms and Conditions do not apply to Reference Sites. Please be aware of when you visit or use any Reference Sites, and we encourage you to read the terms and conditions and privacy policies of any Reference Sites that you visit or use.
19.2. MYSTREAM does not assume any responsibility for Reference Sites. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK. You expressly relieve MYSTREAM from any and all liability arising from your use of any Reference Sites.
19.3. MYSTREAM is not responsible for and does not control or guarantee:
(i) the pricing, quality, performance, availability or terms and conditions of purchase of products or services provided by Reference Sites;
(ii) any payment transactions, shipping charges, deliveries, returns or after sales activities related to the products or services purchased on Reference Sites;
(iii) the availability of Reference Sites; or
(iv) the completeness, truth or accuracy of any advertising or other materials on, or available from, Reference Sites, nor any listing or other content about such products or services displayed on Reference Sites. Any questions, complaints, or claims related to any product or service provided by a Reference Site should be directed to the applicable third party responsible for the Reference Site.
20. THIRD-PARTY FEES
20.1. For particular Devices, MYSTREAM may ask your permission to use your native SMS application to deliver messages or invitations to people who are not registered users of the Services and with whom you choose to communicate. Some of these services may charge additional fees.
21. PREVENTION FROM UNAUTHORIZED USE
21.1. MYSTREAM reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Software or Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your wireless (cellular) carrier regarding such unauthorized use.
22. MOBILE ALERTS AND OPTOUT
22.1. MYSTREAM may use carrier distributed mobile messaging (SMS) to verify ownership of a registered mobile phone number.
22.2. Additional Information: To receive information or technical support for a campaign, reply HELP to the last message received or to short code 82646. Msg&Data Rates May Apply.
22.3. Optout: To be removed from any MYSTREAM mobile messaging program, reply STOP to the last message received or to short code 82646. Msg&Data Rates May Apply.
22.4. Carriers supported: ACS, AT&T, Bluegrass Cellular, Dobson/ Cellular One, Cellular One (IL), Cellcom, Cellular South, Centennial Wireless, Cincinnati Bell, Cox Communications, East Kentucky Network, ECIT, GCI, Immix Wireless, MetroPCS, Midwest Wireless, Nex-Tech Wireless, Nextel, nTelos, Revol Wireless, Rural Cellular, Sprint, T-Mobile, U.S. Cellular, Thumb Cellular, United Wireless, Verizon Wireless, Virgin, and West Central Cellular.
23. LIVE STREAMING
23.1. The Services enable you to view live stream audiovisual content (“Broadcast Content”) which created and transmitted by another user (“Broadcaster User”). You acknowledge and agree that MYSTREAM does not pre-screen any Broadcast Content transmitted by any user. MYSTREAM uses automated, semi-automated, and manual checks of Broadcast Content, however you understand and agree that MYSTREAM cannot find all objectionable Broadcast Content and makes no warranties to you with respect to any Broadcast Content. If you do find any problems in any Broadcast Content, we want your help to solve them. Please notify MYSTREAM immediately.
23.2. The Services may offer a feature allowing you to “purchase”
(i) virtual currency, including virtual coins (“Coins”) for use in the Service, or
(ii) virtual in-Service items (“Gifts” and together with Coins, “Digital Gifts”).
23.3. You acknowledge and agree that the purchase of any Digital Gifts by you must be made lawfully and with actual currency. Any Digital Gifts that are gifted to a Broadcaster User (or received thereby) are converted in the Broadcaster User’s account to, and are referred to herein as, “Diamonds”. Notwithstanding your purchase or possession of Digital Gifts, you acknowledge and agree that you do not in fact own the Digital Gifts, and the amounts of any Digital Gifts in your MYSTREAM account do not refer to any credit balance of real currency or its equivalent. Instead, you understand that the license to you from MYSTREAM hereunder to use the Software and Services includes the right to use certain software programs included in the Services that may manifest themselves as these Digital Gifts.
23.4. Any distribution of Digital Gifts by you is made solely in your discretion. Once you have made a distribution of a Digital Gift to another user, such action cannot be refunded or undone, and the Digital Gift cannot be withdrawn.
23.5. You acknowledge and agree that your distribution of Digital Gifts to a Broadcaster User may result in some revenue to the Broadcaster User. MYSTREAM makes no representation or guarantee that the amount or value in your MYSTREAM account of any Digital Gift you distribute to a Broadcaster User will correlate in any way to the value of the Diamonds received by the Broadcaster User, or to the revenue such Broadcaster User may receive from MYSTREAM. The amount of revenue delivered to a Broadcaster User in exchange for Diamonds or otherwise, if any, is determined by MYSTREAM in its sole discretion.
23.6. The purchase of a Digital Gift is considered a completed transaction when MYSTREAM provides confirmation of receipt of an electronic payment from you via the online application store from which you downloaded the Software or via the MYSTREAM’s electronic payment provider with respect to the web product (the “Application Store”). The purchase of Digital Gifts requires actual money. If you disagree with any part of, or do not fully understand MYSTREAM’s exchange rate policy as described below, please refrain from purchasing or using any Digital Gifts.
23.7. The value (i.e., the exchange rate) of Digital Gifts is determined by MYSTREAM in its sole discretion, and MYSTREAM further reserves the right to modify the exchange rate between actual currency and Digital Gifts from time to time, with or without reason, in its sole discretion. By your use of the Services, you confirm your understanding of and accept the then-current exchange rate of any Digital Gifts at the time of your purchase.
23.8. Any virtual currency balance shown in your MYSTREAM account does not constitute a real-world balance or reflect any stored value. You will not be able to sell Digital Gifts, whether in exchange for virtual or real currency credited back to your MYSTREAM account or otherwise, nor will you be able to receive a refund of virtual or real currency for Digital Gifts (including any virtual currency), including if your access to the Services has been suspended, limited or terminated by you or by MYSTREAM.
23.9. In the event your MYSTREAM account balance with respect to Digital Gifts is incorrect due to system maintenance or other technical failures as determined by MYSTREAM in its sole discretion, MYSTREAM will use commercially reasonable efforts to correct your MYSTREAM account balance. You may contact us regarding your MYSTREAM account balance, purchases of Digital Gifts and/or distributions of Digital Gifts at [email protected]
23.10. Your use of any Digital Gifts must be solely for legitimate purposes within the Services, and must comply with these Terms and Conditions and with all applicable laws at all times. You acknowledge and agree that MYSTREAM may change, modify or update the terms of sale in connection with Digital Gifts from time to time, and that such revised terms will apply to all subsequent purchases of any Digital Gifts, and you further agree that you will review these Terms and Conditions and any terms regarding the sale of Digital Gifts prior to making any purchase.
23.11. You must distribute the Digital Gifts in your MYSTREAM account by no later than 90 days after such Digital Gifts have been purchased (“Distribution Period”). MYSTREAM reserves the right to permanently confiscate from your MYSTREAM account any Digital Gifts not distributed within the Distribution Period or in the event that MYSTREAM determines, in its sole discretion, that you have not logged in to your MYSTREAM account during such 90-day period.
23.12. MYSTREAM takes fraud seriously. Please note that in addition to taking any desirable or necessary legal action, MYSTREAM reserves the right to terminate your use of the Software and Services and/or to permanently confiscate any Digital Gifts from your MYSTREAM account that it determines, in its sole discretion, were acquired using fraudulent or otherwise improper means. MYSTREAM will notify you prior to such confiscation in order to provide an opportunity for you to make an appeal via the Services; provided, however, that MYSTREAM’s determination, in its sole discretion, shall be final and binding on you.
24. STORAGE OF CONTENT
24.1. Storage space is inherently limited and as a result we are careful not to overload our servers.
24.2. Accordingly, you acknowledge and agree that no MYSTREAM Party is under any obligation to preserve, provide access to or return to you any Content and that MYSTREAM shall have no responsibility for the modification, loss, deletion or destruction of any Content, including any stored Content.
24.3. You further understand and agree that MYSTREAM may remove certain Content from its storage systems periodically in its discretion without notice to you.
25. HARM TO YOUR DEVICE
25.1. YOU UNDERSTAND AND AGREE THAT YOU TRANSMIT, DISPLAY, STORE, VIEW OR RECEIVE CONTENT THROUGH THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE SERVICE OR ANY CONTENT, INCLUDING ANY LOSS OF DATA OR DAMAGE TO YOUR PROPERTY (INCLUDING YOUR DEVICE AND COMPUTER SYSTEM).
26.1. You acknowledge and agree that any comments, suggestions, or feedback relating to the Software or any of the Services (“Feedback“) submitted to MYSTREAM are gratuitous, unsolicited and without restriction, and shall become the property of MYSTREAM.
26.2. MYSTREAM will have exclusive ownership of all rights to the Feedback.
26.3. MYSTREAM will be entitled to use the Feedback for any commercial or other purpose whatsoever, without any compensation to you or any other person.
26.4. MYSTREAM will not be required to treat any Feedback as confidential.
26.5. You agree that you do not acquire any right in or to the Software or any of the Services (or any changes, modifications or corrections thereto) by virtue of any Feedback.
26.6. You acknowledge that you are responsible for whatever material is submitted by you, including its legality, reliability, appropriateness, originality, and copyright.
27.1. The Software and Services may only be operated, exported or re-exported in compliance with all applicable laws and export regulations of the United States and the country in which you obtained them.
27.2. The Software and Services are specifically subject to the U.S. Export Administration Regulations; diversion contrary to United States law is prohibited.
27.3. You may not export, directly or indirectly, the Software, Services or technical data licensed hereunder or the direct product thereof to any country, individual or entity for which the United States Government or any agency thereof, at the time of export, requires an export license or other government approval, without first obtaining such license or approval.
28. US GOVERNMENT RIGHTS
28.1. All Software, the Services and technical data are commercial in nature and developed solely at private expense.
28.2. The software program and documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable.
28.3. Any use, modification, reproduction, release, performance, display or disclosure of the software program and/or documentation by the U.S. Government or any of its agencies shall be governed solely by the Terms and Conditions and shall be prohibited except to the extent expressly permitted by the Terms and Conditions.
28.4. Any technical data provided that is not covered by the above provisions is deemed to be “technical data-commercial items” pursuant to DFAR Section 227.7015(a).
28.5. Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 227.7015(b).
INTERNATIONAL USERS. The Software and Services are hosted in the United States and by using the Software and/or any of the Services, if you are located in the European Union, Asia or any other region with laws or regulations governing personal data collection, use and disclosure that differ from United States laws, then you understand and consent to the processing of personal information in the United States. NOTICES. MYSTREAM may provide you with notices, including those regarding changes to the Terms and Conditions, by email, via the Services or postings on the MYSTREAM website. Notice will be deemed given twenty-four (24) hours after email is sent. Notice posted on the MYSTREAM website or via the Services is deemed given ten (10) days following the initial posting. MYSTREAM reserves the right to determine the form and means of providing notifications to our users.
ABILITY TO CONTRACT. You hereby affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in the Terms and Conditions, and to abide by and comply with the Terms and Conditions.
ASSIGNMENT. You are not allowed to assign any of the Terms and Conditions or any rights or obligations thereunder. Any attempted transfer or assignment in violation thereof shall be null and void. MYSTREAM is allowed at its sole discretion to assign or transfer any of the Terms and Conditions and any rights thereunder to any third party, without giving of notice.
WAIVER. The failure of any MYSTREAM Party to exercise or enforce any right or provision of the Terms and Conditions will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms and Conditions will be effective only if in writing and signed by MYSTREAM.
HEADINGS. The heading references herein are for convenience purposes only, do not constitute a part of the Terms and Conditions, and will not be deemed to limit or affect any of the provisions hereof.
GOVERNING LAW AND DISPUTES. The Terms and Conditions are governed by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents, and by the laws of the United States. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to the Terms and Conditions. You agree that the Services shall be deemed solely based in California and each a passive Service that does not give rise to personal jurisdiction over MYSTREAM, either specific or general, in jurisdictions other than the State of California. Any dispute, claim or controversy arising out of or relating to any of the Terms and Conditions, or the breach, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of any of the Terms and Conditions to arbitrate, shall be determined by arbitration. The arbitration shall be administered by the Judicial Arbitration and Mediation Service (JAMS), and the arbitration shall be conducted with a single arbitrator. Furthermore, you agree that neither you nor MYSTREAM will join any claim with the claim of any other person or entity in arbitration; that no claim will be resolved on a class-wide basis; and that neither you nor MYSTREAM will assert any claim in a representative capacity on behalf of anyone else. Notwithstanding the foregoing, you agree that MYSTREAM shall be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. If you file an arbitration complaint against MYSTREAM, MYSTREAM agrees to pay for any portion of the initial filing fee that exceeds $250; after the initial filing fees, the parties will share the costs of arbitration equally. You agree not to commence or prosecute any action against any MYSTREAM Party other than by filing an arbitration complaint in accordance with this paragraph. IMPORTANTLY, BY AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS, YOU ARE WAIVING ANY RIGHT YOU HAVE TO SEEK RELIEF IN A COURT OF LAW AND ANY RIGHT YOU HAVE TO A TRIAL BY JURY.
INJUNCTIVE RELIEF. You acknowledge that the obligations made hereunder to MYSTREAM are of a unique and irreplaceable nature, the loss of which shall irreparably harm MYSTREAM and which cannot be replaced by monetary damages alone so that MYSTREAM shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief.
THIRD PARTY BENEFICIARIES AND AGREEMENTS. If you downloaded the Software from the Apple App Store, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms and Conditions, and that, upon your acceptance of the Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms and Conditions against you as a third party beneficiary hereof. You agree to comply with, and your license to use the Software and Services is conditioned upon your compliance with, all applicable third-party terms of agreement, including those of any Application Store, as may be applicable, when using the Software and/or Services. NO PARTNERSHIP, AGENCY, JOINT VENTURE. The Terms and Conditions do not create or imply any partnership, agency or joint venture.
SEVERABILITY. If any of the provisions of the Terms and Conditions shall be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity or enforceability of any remaining provisions.