Advanced Platform Terms
Updated May 6th 2021
By entering into a sales order that incorporates by reference this StreamYard Advanced Platform Terms, the individual or entity identified as customer on the sales order form (“Customer”) agrees to these terms with StreamYard. If an inconsistency occurs between the terms of these Advanced Platform Terms and the Order, the Order’s terms shall control. The terms “You,” “Your” or a related capitalized term shall refer to Customer. Customer and StreamYard are collectively referred to as the “Parties” and individually as a “Party.”
“Add-Ons” means additional StreamYard features or functionality that You elect to purchase or enable, but that are not included in Your Subscription Plan.
“Affiliate” means, regarding a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” means this StreamYard Advanced Platform Terms with any Orders and exhibits incorporated by reference.
“Content” means the materials and content that You or others (where applicable) transmit through or store on the Platform, including but not limited to, materials to be displayed during Streams, Contributions, audio-visual content, speakers, interactive content, and any other materials or content that You or others (where applicable) make available or submit to the Platform in connection with Your Streams and recording thereof, but excluding any IP Rights and property owned by StreamYard or its licensees.
“Contributions” means any content, information, and data, such as chat messages or files (if applicable), submitted to the Platform and/or Streams by You, your Guests and/or your Viewers (as the case may be).
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time which apply to a Party relating to the use of personal data, which may include, without limitation, the General Data Protection Regulation ((EU) 2016/679); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426); the California Consumer Privacy Act of 2018 (AB 375) (CCPA); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party.
“Documentation” means any written or online documentation and user manuals, specifying the features, functionalities, and limitations of the Services and Platform as made available by StreamYard, including but not limited to those available at https://support.streamyard.com.
“StreamYard” means StreamYard, Inc., a Delaware corporation with its principal place of business located at 2810 N. Church St., Wilmington, DE 19802, and any of its successors or assignees, with all of its Affiliates.
“StreamYard Community Guidelines” means the StreamYard Community Guidelines located at https://StreamYard.com/docs/community-guidelines
“StreamYard User Terms” means the StreamYard User Terms of Service located at https://StreamYard.com/docs/terms-of-service
“Guests” means individuals who may be invited to participate in the Stream, but who are not Team Members.
“IP Rights” means any respective patents, inventions, copyrights, trademarks, logos, service marks, trade names, domain names, trade secrets, know-how and any other intellectual property and proprietary rights.
“Law” means any applicable law, ordinance, regulation, code, or order, of any governmental body having jurisdiction over the Parties, Streams, or Services, including but not limited to Data Protection Legislation.
“Non-StreamYard Products” means third party products, applications, services, software, networks, systems, directories, websites, databases and information, which the Service live-streams to, or which You connect to or enable integration with, in connection with Your use of the Service.
“Order” means StreamYard’s system generated sales order executed by You and Us, or the Services You select during the online ordering process, each that incorporates this Agreement.
“Personal Data” is as defined in the Data Protection Legislation and includes, without limitation, “personal information” as defined by the CCPA.
“Platform” means the StreamYard studio platform generally accessible at www.StreamYard.com and includes its associated software, services, products, information, networks, components, APIs, and Documentation.
“Service(s)” means the products and services referenced in an Order referencing this Agreement, which may include Your Subscription Plan and any Add-Ons, but expressly excludes Non-StreamYard Products.
“Stream” means an online stream initiated on the Platform for onward distribution to Non-StreamYard Products.
“Subscription Fee” means the fee payable for the applicable Subscription Plan.
“Subscription Period” means the license period for the applicable Subscription Plan.
“Subscription Plan” means the specific StreamYard subscription plan You purchased as specified in Your Order.
“Team” means a profile within a StreamYard account, under which individual Streams are created and managed under Workspaces.
“Team Member” means Your employees and personnel, and those of Your third party vendors, who You authorize to access and use Your Team’s Workspace(s).
“Team Member Seat” means a licensed seat required for each Team Member to access the Platform under Your Subscription Plan, and where such license seats may have different levels of access and features (such as certain Team Members who require higher levels of access because they are leading and managing a team of Team Members).
“Viewers” means those individuals, other than Customer or Team Members, whom You invite to receive a Stream or who actually view the Stream on a Non-StreamYard Product.
“Workspaces” means the feature of the Service that will enable multiple Team Members to create and/or collaborate on Streams on the Platform.
Subject to this Agreement and payment of the applicable fees, StreamYard will provide the Services specified in Your Order, and hereby grants You a non-exclusive, non-transferable, non-sublicenseable (subject to Section 1.2 and 1.3) revocable right to access the Platform and use the Services during the applicable Subscription Period. The license granted hereunder is personal to You, and You may not re-use or share Your license with a third party, such as Your own customer or client, unless otherwise agreed to in a separate writing. If you are an agency or reseller interested in our Certified Partner Program, contact us by emailing [email protected]
You may extend the rights and benefits provided to You under this Agreement to Your Affiliates, provided that such Affiliate executes a separate Order or other sales rider referencing these Advanced Platform Terms for its own Subscription Plan and You remain primarily liable for payment and acts and omissions of Your Affiliates.
1.3 Educational Associates
If You are a qualified non-profit educational institution, You may extend the rights and benefits provided to You under this Agreement to Your associated campuses and educational institutions in which case such associated institution will be deemed an “Affiliate” under this Agreement; provided that each associated institution executes a separate Order or other sales rider referencing these Advanced Platform Terms for its own Subscription Plan and You remain primarily liable for payment and acts and omissions of Your associated institutions.
1.4 Non-StreamYard Products
Non-StreamYard Products are governed solely by the terms and privacy policies of such Non-StreamYard Products. StreamYard is not responsible or liable for, and makes no representations or warranties as to, any aspect of such Non-StreamYard Products. By enabling and by creating Content for onward distribution to Non-StreamYard Products, You are expressly permitting StreamYard to disclose Your Content and applicable account data as necessary to facilitate the use or enablement of such Non-StreamYard Products.
1.5 Upgrades; Add-Ons
You can upgrade Your Subscription Plan or purchase Add-Ons at any time during Your Subscription Period by signing an additional Order. Your upgrade or Add-Ons will be effective immediately once We successfully charge Your payment method for the increased fees. If Your Subscription Plan has the same renewal period (e.g., month-to-month or annual renewal), We will charge You for the prorated difference between Your current subscription and the upgraded one based on the number of days left in Your current Subscription Period so that Your Subscription Plan renewal date remains the same. If Your Subscription Plan is changing from month-to-month to annual, We will charge You immediately for the full annual Subscription Fee and reset Your renewal date for one year thereafter.
You can downgrade Your Subscription Plan or reduce Your Add-Ons during a Subscription Period in Your account, but such downgrades will not become effective until the end of Your current Subscription Period, and You will not receive a refund or credit for such downgrade or reduction of features. You must remove Team Members before the downgraded renewal Subscription Period begins. Downgrading Your SubscriptIon Plan may cause loss of content, features, or functionality of the Service available to You, and StreamYard accepts no liability for such loss.
StreamYard provides 24/7 remote monitoring of the Platform and Services, and the global help desk available 24/7 by visiting https://streamyard.com/contact. We will make commercially reasonable efforts to provide the Services twenty-four (24) hours a day, seven days a week, but availability is not guaranteed and may be disrupted, unavailable, or inoperable due to: (a) unforeseeable circumstances, or foreseeable circumstances that despite Our commercially reasonable measures to prevent are not within Our ability to fully prevent (including but not limited to widespread internet disruptions, interruption of services by Our service providers that was not caused by Us, and malicious third party acts); (b) emergency security measures; or (c) planned downtime of which We will give advance notice to the account owner. You acknowledge that while the Services are designed for ease of use, it is Your responsibility to ensure that any individuals involved in accessing and using the Services are appropriately trained to use any applicable third party technology, and have reviewed the relevant StreamYard training materials and Documentation made available to You. You are solely responsible for procuring any third party cooperation reasonably required for the receipt of Services and for ensuring that Your IT infrastructure complies with the relevant specifications to use the Services provided by StreamYard.
1.8 Beta Features
StreamYard may offer access to features, services, products, or integrations, that are pre-release, beta versions (“Beta Feature”). Access to and use of Beta Features may be subject to additional agreements. StreamYard makes no representations or warranties that a Beta Feature will ever be made generally available and reserves the right to discontinue or modify a Beta Feature at any time without notice. Beta Features are provided AS IS, may contain bugs, errors or other defects, and Your use of a Beta Feature is at Your sole risk. The existence and details of the Beta Feature, and your feedback about the Beta Feature, are deemed the Confidential Information (as defined in Section 8.1) of StreamYard.
2. TERM, TERMINATION
Unless Your subscription expires due to non-renewal or is otherwise terminated earlier, at the end of your Subscription Plan it will automatically renew for successive one (1) year Subscription Periods.
2.2 Fee Changes
StreamYard may increase or decrease the Subscription Fees in its sole discretion. Any change to the Subscription Fees will only become effective upon renewal of Your Subscription Plan. We will give you reasonable prior notice of any change in Subscription Fees to give you an opportunity to terminate Your Subscription Plan before such change becomes effective.
Either Party may elect to not renew any Subscription Plan by providing notice at least thirty (30) days before the end of the then-current Subscription Period. Expiration of the Subscription Plan due to non-renewal will be effective as of the end of the then-current Subscription Period.
2.4 Termination for Cause
Either Party may terminate this Agreement or individual Order (a) effective upon notice to a Party due to its material breach that was not cured within thirty (30) days after receipt of a breach notice from the Party claiming breach; or (b) if the other Party becomes the subject of a petition in bankruptcy, or other proceeding, petition, notice, resolution, or order relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
2.5 Payment Upon Termination
If We terminate this Agreement or an individual Order due to Your uncured breach under Section 2.4, You must immediately pay any undisputed and unpaid fees for the remainder of such Subscription Period, in addition to any other undisputed amounts You may owe StreamYard. If You terminate this Agreement due to StreamYard’s uncured and uncontested breach under this Section, StreamYard will refund You a prorated portion of the prepaid Subscription Fees and Add-On Fees covering the remainder of the Subscription Period.
2.6 Export of Content
Your Content will be available to You for export or download as provided in the Documentation. StreamYard has no obligation to maintain or provide the Content, and may delete Your Content. Notwithstanding the forgoing and subject always to Section 5, StreamYard will delete Your Content promptly upon Your request, unless prohibited by Law.
3. FEES AND PAYMENTS
The Order will specify the applicable fees for all Services and Non-StreamYard Products (if applicable), exclusive of sales, value-added, use, or withholding taxes assessable by any local, state, provincial or foreign jurisdiction, levies, duties, or similar governmental assessments (“Taxes”). Applicable Taxes will be reflected in Your invoice. Except for the portion of fees subject to a good faith dispute, all fees and Taxes set forth in the invoice are due within 14 days of invoice date, unless otherwise agreed in the Order. You may not withhold any Taxes or charges or set-off any amounts due to StreamYard. StreamYard reserves the right to withhold the payment of any amounts owed to You hereunder and dispose of them as required by Law, in each case as determined by StreamYard, or to seek later payment from You of any amounts on Taxes uncollected and unremitted.
You will be invoiced for any Service You use above the Subscription Plan limitation (including Taxes), such as additional Team Member Seats used over Your allotment (“Overage Fees”). Overage Fees are due within 14 days of invoice date.
3.3 Credit Extension
We may, in our sole discretion, extend credit to You. The amount and terms of credit are subject to our periodic review. StreamYard may in its sole discretion increase, decrease, suspend or revoke credit at any time for any reason and without advance notice. Except to the extent we otherwise agree, StreamYard has no obligation to make or incur any expense, guarantee or advance for any purpose.
3.4 Optional Credit Card and Fees
If You authorize StreamYard to charge a credit card as a method of payment (a “Credit Card Authorization”), then You authorize StreamYard to charge the credit card account for the amount on any and all invoices without further notice to You. All credit card transactions will include a credit card processing fee equal to 3.0% of the outstanding balance paid by credit card. You acknowledge that StreamYard relies upon Your Credit Card Authorization when determining whether to provide Services to You. Therefore, in consideration for StreamYard agreeing to rely on Your Credit Card Authorization as a means of payment, You irrevocably authorize StreamYard to charge Your credit card for any Overage Fees during Your Subscription Period. If You take any action to frustrate a transaction authorized by this Agreement, then StreamYard, automatically and without further notice, revokes any credit terms or other payment accommodation which it might have previously afforded to You, accelerates Your entire account balance, and Your entire balance is immediately due and payable.
3.5 Late Fees
In addition to any applicable late fees or charges, any unpaid principal balance shall accrue interest at the rate of 2% per month, or the highest rate of interest permitted by law, whichever is lower, starting fourteen (14) days after notice to You that payment is delinquent, until the balance is paid. We may initiate a collection process or legal action to collect any money owed to us. You agree to pay all our costs for such action, including any reasonable attorneys’ fees.
3.6 Currency; No Refunds
All fees are due and payable in the currency specified by StreamYard, unless otherwise agreed. All fees are non-refundable and Your payment obligations are non-cancelable.
3.7 Free Trial
StreamYard may, at its sole discretion, offer a Subscription Plan with a free trial for a limited period of time (“Free Trial”). You may be required to enter your billing information in order to sign up for the Free Trial. If you do enter your billing information when signing up for the Free Trial, you will not be charged by StreamYard until the Free Trial has expired. On the last day of the Free Trial period, unless you cancelled your Subscription Plan, you will be automatically charged the applicable Subscription Fee for the type of Subscription Plan you have selected. During Your Free Trial, the Services are provided “AS-IS” and expressly excludes and disclaims all warranties and the StreamYard indemnification in Section 11.
4. OWNERSHIP OF CONTENT
As between You and StreamYard, You are the owner of Content and retain all ownership rights thereto. During the applicable Subscription Period, You grant StreamYard a non-exclusive, sub-licensable, license to use, store, edit, reproduce, modify and copy that Content solely as necessary for StreamYard to provide You the Services.
StreamYard will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Content under the security measures described at https://support.streamyard.com/hc/en-us/articles/360044699991-StreamYard-Security.
5.1 Applicable Law
The Parties agree to comply with all applicable Data Protection Legislation when using the Services, as applicable.
5.2 Personal Data Breach
StreamYard agrees to notify You without unreasonable delay, and promptly as required by Law, on becoming aware of a Personal Data breach. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data.
5.3 Deletion of Personal Data
At Your written direction, StreamYard agrees to delete or return Your Personal Data to You on termination of the Agreement unless required by Law to store such data.
In the event Customer and StreamYard execute a separate data processing agreement, such data processing agreement shall be incorporated into this Agreement by reference and shall be subject to the provisions of this Agreement.
6. USE OF THE SERVICES
6.1 Seat and Registration Management
Each Subscription Plan includes a limited number of Team Member Seats that may be filled by Your Team Members. Team Member Seat login account credentials cannot be shared or used by more than one individual at a time, but Seats can be reassigned to replacement Team Members. You and Your Team Members must maintain the confidentiality of all Team Member login credentials and mechanisms. You shall not attempt to circumvent the Subscription Plan licensing and feature limits or restrictions. You are solely responsible for Your Team Members’ compliance with this Agreement and for all activities that occur under Your account, whether authorized or not (unless such unauthorized access was caused by StreamYard). StreamYard reserves the right to monitor Your usage of the Services for Your compliance.
6.2 Content and Conduct
You will comply with the StreamYard Community Guidelines which are incorporated into this Agreement. StreamYard has the right to remove any content if in StreamYard’s reasonable opinion, that content does not comply with the StreamYard Community Guidelines or exposes StreamYard or StreamYard’s users to any potential liability or risk. StreamYard will make good faith efforts to promptly notify You (whether before or after the removal). We shall not be liable to You, Team Members, Viewers, Guests or any other third party for any Losses stemming directly or indirectly from such content’s submission to the Platform and/or such content’s removal.
6.3 Your StreamYard User Terms responsibility
You will make commercially reasonable efforts to enforce the StreamYard User Terms with Your Team Members, Guests and/or Viewers (as applicable). If You intentionally or knowingly allow, or reasonably should have known of, any Guest or Team Member or Viewer’s violation of the StreamYard User Terms, You are liable for the actions or inactions of such Guests, Viewers and/or Team Members under this Agreement as if they were Your own. StreamYard is not liable to You for any violations of the StreamYard User Terms by Your Team Members, Guests and/or Viewers (as the case may be). You are responsible for all aspects of dealing with Your Team Members, Guests and Viewers, such as Your Stream specific rules or conditions, securing appropriate consent or agreement from Guests and/or Viewers, the specific details and content of Your Stream, and personnel matters related to Team Members. If You become aware of any behavior by Team Members, Guests and/or Viewers that would constitute a violation of the StreamYard User Terms, You are responsible for prohibiting any further access to the Stream, which can be done at any time through Your account.
StreamYard may modify any feature or functionality of the Services and reserves the right to discontinue either at any time. StreamYard shall provide You with commercially reasonable advance notice of deprecation of a material feature that affects You via email or the Platform. To the extent such modification results in a material reduction of overall functionality without a comparable replacement, You may elect to terminate this Agreement by providing notice to StreamYard within 30 days of such material reduction, and receive a prorated portion of all prepaid Subscription Fees associated with the impacted Service.
6.5 Temporary Suspension
We reserve the right to suspend or restrict access to the Services if: (a) We reasonably believe that You or Your Stream violate this Agreement or Your Team Members, Guests and/or Viewers violate the StreamYard User Terms; or (b) We suspect or detect any viruses, malware, Trojan horses, time bombs, or other similar harmful software connected to Your account, Stream, Guests or Viewers. We shall not be liable to You or any third party for any such suspension.
You shall timely cooperate with StreamYard to provision the Services, including but not limited to, giving StreamYard accurate information, access, and materials as reasonably necessary to provide You the Services. You acknowledge that Your delay or failure to do so may result in Your inability to use all or a part of the Services, in which case StreamYard will not be liable.
6.7 No Resale; Restrictions
Any licenses or rights granted to You hereunder are personal and non-transferable. You agree not to license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share, or otherwise commercially exploit or resell the Services to a third party. The foregoing does not prohibit authorized use of the Services by Your Team Member, Guests, Viewers and/or Affiliates, solely as reasonably necessary for You to use the Services; provided that such Team Members, Guests, Viewers and/or Affiliates, are legally bound to comply with Your obligations hereunder and You remain liable for their violation of this Agreement. You agree not to (a) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (b) attempt to bypass or break any security or limiting mechanism on the Services or use the Services in a manner that interferes with or disrupts the integrity, security or performance of the Services; falsely imply any sponsorship or association with StreamYard; (c) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the Services or Platform; (d) use or launch an automated system that accesses the Service (e.g., bot) in a manner that materially and adversely affects the security, availability, or stability of the Services; or (e) unlawfully use the Services or violate a person’s privacy rights.
6.8 System Requirements
Use of the Services requires one or more compatible devices, Internet access, and certain software, and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.
StreamYard may aggregate, collect, and analyze information relating to the provision, use and performance of the Services, and may use such information to provide You the Services, and improve Our services and other offerings (“Analytics”). StreamYard may also disclose the Analytics solely in an aggregated and anonymized format such that neither You, nor any other customer, individual or household, can be identified or re-identified, and solely for the purposes of providing You the Services and improving Our services and other offerings. StreamYard may also disclose Analytics if required by law or government order.
7.2 Your Ownership
Any Analytics specific to You or Your Streams are owned by You and are deemed Your Confidential Information (as defined in 8.1). StreamYard will never use or disclose Your Analytics in a manner intended to allow any third party to identify or benchmark Your business practices and services.
8. CONFIDENTIAL INFORMATION
“Confidential Information” means all information disclosed by one Party to the other Party in tangible form and designated as confidential; or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information excludes information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality regarding such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
Each Party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise permitted under this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and may disclose such Confidential Information (a) solely to the employees, non-employee service providers, or contractors who need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of an administrative agency or court of competent jurisdiction provided that the receiving Party gives the disclosing Party sufficient notice to enable it to seek an order to limit or prevent such disclosure; or (c) as reasonably necessary to comply with Law.
9. INTELLECTUAL PROPERTY RIGHTS
Each Party retains all rights, title, and interest in its respective IP Rights. The rights granted to You, Team Members, Guests and Viewers (as applicable) to use the Service(s) under this Agreement convey no additional rights in the Services or any IP Rights of StreamYard associated therewith. Subject only to the limited rights expressly granted herein, all rights, title and interest in the Services and Platform, including all related IP Rights, belong exclusively to StreamYard.
If applicable, You grant StreamYard a fully paid, royalty-free, worldwide, transferable, sublicensable, assignable, irrevocable, and perpetual license to use, modify, exploit, and incorporate, any suggestions, enhancement requests, recommendations, or other feedback related to the Platform or Services, given to StreamYard by You, Your Team Members, Guests and Viewers (as applicable) or other third parties acting on Your behalf.
10. REPRESENTATIONS AND DISCLAIMERS
Mutual Representations. Each Party represents to the other that (a) this Agreement is a binding and enforceable agreement; (b) no third party authorization or approval is required for its execution or performance of this Agreement; and (c) the execution and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is bound.
THE PLATFORM AND SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM STREAMYARD OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11.1 In this Section 11, the following definitions apply:
“Claim” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding. “Expenses” means any reasonable out-of-pocket expense incurred in defending a Claim or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements. “Indemnitee” means a Party and its Affiliates, and their respective directors, employees, agents, consultants, advisors, and other representatives. “Indemnitor” means the Party providing the indemnity under this Agreement to the other Party. “Losses” means any amount awarded in, or paid in settlement of, any Claim, and expressly excludes any consequential, incidental, indirect, punitive, special damages, service replacement costs, cover damages or similar liabilities that are payable to third parties who use the Services.
11.2 StreamYard Indemnification
StreamYard will indemnify Customer Indemnitees against all Losses arising out of a Claim brought by a third party against Customer Indemnitees, alleging that Your use of the Service infringes or misappropriates a third party’s IP Rights (an “IP Claim”). If Your use of a Service has become or is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (i) procure for You the right to continue using the Services; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by StreamYard, terminate Your Service and refund You a prorated portion of any Subscription Fees previously paid to StreamYard for the unused portion of Your Subscription Period. We will have no liability or obligation regarding any IP Claim if it is caused in whole or in part by (x) compliance with designs, data, instructions, or specifications provided by You; (y) modification of the Services, unless performed or authorized by StreamYard; or (z) the combination, operation or use of the Services with other hardware or software where a Service would not by itself be infringing. The provisions of this Section state the sole, exclusive, and entire liability of StreamYard to You and constitute Your sole remedy regarding an IP Claim.
11.3 Customer Indemnification
You will indemnify StreamYard Indemnitees against all Losses arising out of a Claim brought by a third party against StreamYard Indemnitees: (a) alleging that Your Content infringes or misappropriates a third party’s IP Rights; (b) arising from Your breach of this Agreement, or (c) arising from or related to Your violation of the Community Guidelines or Law in connection with Your use of the Services.
The indemnity obligations in this Agreement do not apply unless: (a) Indemnitee promptly notifies the Indemnitor of the threat or notice of a Claim; (b) Indemnitor has the sole and exclusive control and authority to select defense attorneys, and defend or settle any such Claim; provided that Indemnitor shall not settle or compromise any claim that results in liability or admission of any liability by Indemnitee without its prior written consent; and (c) Indemnitee cooperates with Indemnitor. An Indemnitee is entitled to participate in the defense of a Claim at its own expense. Indemnitor shall pay any Expenses that Indemnitee incurs in connection with defense of the Claim before Indemnitor assumes the defense, except with respect to any period during which the Indemnitee fails to timely notify Indemnitor of that Claim. If both Parties are negligent or otherwise at fault or strictly liable without fault, then the Indemnitor shall indemnify Indemnitee only for the percentage of responsibility for the damage or injuries attributable to Indemnitor.
12. LIMITATION OF LIABILITY
12.1 DAMAGES EXCLUDED
Neither Party nor their respective Affiliates will be liable to the other under this Agreement, under any legal theory (whether in contract, tort, negligence or otherwise) for any incidental, consequential, indirect, special, exemplary, or punitive loss or damages; or for lost profits, lost sales or business, lost data (through no fault of StreamYard), business interruption, loss of goodwill, costs of cover or replacement, whether or not such Party has been advised of the possibility of such damages.
12.2 MONETARY CAP
StreamYard’s aggregate liability to You and Your Affiliates arising out of this Agreement, shall not exceed the Subscription Fees paid by You during the twelve (12) months before the first event giving rise to such liability. This limitation of liability applies in aggregate to Your and Your Affiliates’ claims and shall not be cumulative.
Notwithstanding Section 12.2, nothing in this Agreement excludes or limits the liability for (a) either Party for death or personal injury caused by its acts or omissions; (b) either Party’s gross negligence, fraud, fraudulent misrepresentations, or intentional misconduct; (c) fees payable to StreamYard; or (d) Customer’s breach of the license hereunder; or (e) Customer’s indemnification obligations in Section 11.
12.4 Risk Allocation
The Sections on limitation of liability, disclaimer of warranties, and warranties allocate the risks of the Agreement between the Parties. This allocation is reflected in the pricing of the Services and is an essential element of the basis of the bargain between the Parties. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or personal injury or death, so some of the above limitations may not apply to You. In these jurisdictions, such Party’s liability will be limited to the greatest extent permitted by Law.
13.1 Compliance with Laws
Each Party agrees to abide by all Laws to the extent applicable to its performance or exercise of its rights under this Agreement.
Each Party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employees or agents of the other Party in connection with this Agreement. If a Party learns of any violation of the above restriction, it will use reasonable efforts to promptly notify the other Party.
13.3 Economic Sanctions and Export Controls
You agree that You will not use, and will not permit any other party to use StreamYard or participate in a Stream in violation of this Agreement or the Community Guidelines, or in a manner that violates, or could cause StreamYard to violate, economic sanctions or export control laws or regulations of the United Kingdom, the United States or any other jurisdiction, and You agree that You are solely responsible for compliance with all such laws and regulations. You represent that You: (a) are not organized under the laws of, ordinarily resident in, or located in, a country or territory that is the target of economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or Her Majesty’s Treasury and will not access or use StreamYard or participate in a Stream, in such countries or territories; (b) are not, and are not owned 50% or more, individually or in the aggregate by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders List; (c) are not, and are not owned 50% or more or controlled, individually or in the aggregate by persons, identified on the Consolidated List of Financial Sanctions Targets in the UK administered by Her Majesty’s Treasury; and (d) are not a person identified on the U.S. Department of Commerce Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists. You will not permit any person described in any of clauses (a), (b), (c) or (d) to be a Team Member, Guest and/or Viewer in any Stream or to access or use StreamYard in connection with any such Stream. This section applies except to the extent it would cause any person, including StreamYard and You, to contravene, where applicable, the EU’s Blocking Regulation or the UK’s Protection of Trading Interests Legislation.
Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign its rights and obligations under this Agreement to an Affiliate or in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction, with notice to the other Party (provided that any assignee of Customer also completes and meets any applicable credit reviews by StreamYard and further provided that if You assign this Agreement to a competitor of StreamYard, StreamYard may terminate this Agreement upon 30 days notice to You). This Agreement inures to the benefit of and is binding on the Parties’ permitted assignees, transferees and successors.
This Agreement constitutes the entire agreement and supersedes any prior agreements between You and StreamYard regarding the subject matter hereof. This Agreement shall apply in place of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being void), and, except as stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party regarding the subject matter hereof.
We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days before the effective date of any material amendment that materially and adversely affects Your rights under this Agreement, and Your continued use of the Services following the effective date will be Your agreement to any such amendment. You may elect to terminate this Agreement by providing notice to StreamYard within 30 days of such material amendment, and receive a prorated portion of all prepaid Subscription Fees associated with the impacted Service. Amendments that are simply addressing new functions we add to the Services or which do not impose any additional burdens or obligations on you will be effective immediately. You are responsible for reviewing and becoming familiar with any amendments to this Agreement.
Either Party’s failure to enforce any provision of this Agreement does not constitute a waiver of that provision or any other provision of this Agreement.
If a provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.9 Independent Contractors
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
Any notice under this Agreement must be in writing and delivered by email to all the addresses specified below. Email notice is effective as of the day sent if sent by 5 pm GMT or the day after if sent after 5 pm GMT.
If to StreamYard, by email to:
- [email protected] with “LEGAL NOTICE” in the subject line, and
- Any additional email addresses specified on the Order. If to Customer, email to both notice email addresses specified in the Order.
13.11 Governing Law
If Your contact address is in the United States, New York State law governs this Agreement, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in New York, New York. Each Party submits exclusively to the personal jurisdiction of this jurisdiction to resolve any dispute relating to this Agreement or Your use of the Services. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
If Your contact address is not in the United States, this Agreement and any disputes or claims relating to it or its validity, performance subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed under, the laws of England and Wales and each party agrees to submit to the exclusive jurisdiction of the Courts of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
You represent that the choice of law to govern this Agreement is a valid choice of law under the laws of the country in which You are based and Your submission to the jurisdiction of the courts specified above is valid and binding on You.
Sections 2 to 14 survive any expiration or termination of this Agreement.
13.13 Logo Rights
During the Subscription Period, You give StreamYard permission to include Your logo and name on StreamYard’s customer lists, sales and marketing collateral.
14.1 Informal Resolution
StreamYard wants to address your concerns without resorting to a formal legal case. Before filing a claim, each Party agrees to try to resolve the dispute by notifying the other Party first. If a dispute is not resolved within 30 days of notice, You or StreamYard may bring a formal proceeding.
14.2 Agreement to Arbitrate
You and StreamYard agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in New York, NY, or any other location both parties agree to in writing.
14.3 NO CLASS ACTIONS
You may only resolve disputes with StreamYard on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.