By using or accessing the Service and/or by clicking "I agree" in connection with any subscription or membership or other acceptance page on the Site, you agree to be bound by these Terms, as they may be amended from time to time. You hereby represent and warrant to MVPCAST that you are at least thirteen (13) years of age and are you are legally able to enter into this agreement and that you will use the Service in compliance with all applicable laws and regulations. If you use the Service on behalf of a business, you hereby represent to MVPCAST that you have the authority to bind that business and your acceptance of these Terms will be treated as acceptance by that business. In that event, "you" and "your" will refer to that business in these Terms.
The Service is available to both paying and non-paying Users, as set forth on the Service. Users who pay for a subscription to the enhanced version of the Service will be entitled to rights of paid Service (the "Paid Service")." Users who try the Paid Service through a free trial are "Free Trialers." All other Users are "Free Users." As part of the Service, Users may be entitled to create and manage Teams, and participate in Teams as viewers, producers of content and otherwise as may be described as part of the Service. Users must be invited or accepted to participate in a Team, and Users may be uninvited or removed from a Team by the Team creator or manager. Teams may consist of one or more Users (“Team Users”), subject to these Terms, and rights of Team Users may vary based on status as Paid Service Users, Free Trialers or Free Users, as well as any restrictions implemented by Team creators.
MVPCAST reserves the right, at MVPCAST's discretion, to change these Terms on a going-forward basis at any time by posting the amended Terms to the Service, and this will be reflected by the “Last Updated” date found at the top of this page. Please check these Terms and any other policies periodically for changes. It is your responsibility to review these Terms periodically, and if at any time you find these Terms unacceptable, you must immediately cease all use of the Service. Your continued use of the Service after new and/or revised Terms are effective indicates that you have read, understood, and agreed to those Terms.
NOTHING IN THESE TERMS SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these Terms shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
2. MVPCAST's Ownership of Materials; Limited License
(a) The data and materials on the Service, except the User Generated Content (“UGC”), as more fully defined below, including, without limitation, the text, graphics, interactive features, logos, photos, music, videos, software, and all other audible, visual or downloadable materials, as well as the selection, organization, coordination, compilation and overall look and feel of the Service (collectively, the "Materials") are the intellectual property of MVPCAST, its licensors and its suppliers. The Materials are protected by copyright, trade dress, patent, trademark and other laws, international conventions and proprietary rights and all ownership rights to the Materials remain with MVPCAST, its licensors or its suppliers, as the case may be. All trademarks, service marks, and trade names are proprietary to MVPCAST or its affiliates and/or third party licensors. Except as expressly authorized by MVPCAST, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make use of the Materials. If, with authorization, you download or print a copy of the Materials for personal use, you must retain all copyright, trademark, or other proprietary notices. MVPCAST reserves all rights not expressly granted in and to the Service and the Materials.
(b). Subject to your compliance with the terms and conditions set out in these Terms, MVPCAST hereby grants you a personal, limited, non-exclusive, non-transferable, freely revocable license to use the Service. MVPCAST RESERVES THE RIGHT TO ALTER, REMOVE OR DISCONTINUE ANY PORTION OF THE SERVICE OR THE CONTENT ON THE SERVICE, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION, AND WILL NOT BE LIABLE IN ANY WAY FOR POSSIBLE CONSEQUENCES OF SUCH CHANGES.
4. Your UGC
(a) The Service provides a system and method for Users to produce and distribute authorized live and prerecorded audiovisual content (the "Audiovisual Content") for personal, non-professional, non-commercial use. The Service permits Users to create, upload and/or display content of their own creations, including Audiovisual Content and any other content, including without limitation, sports statistics, videos, music, images, and text (collectively, “User Generated Content” or "UGC"). UGC must be lawfully obtained and may not contain any advertising or commercial content, any professional sports broadcast material or other third party content. You must be over the age of eighteen (18) to upload or display UGC. UGC, which includes Audiovisual Content, and is distributed via the Service (in accordance with the terms herein). YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR UGC. SUBMITTING YOUR UGC TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
(b) By submitting UGC to MVPCAST, you:
(i) grant MVPCAST a perpetual, worldwide, non-exclusive, royalty-free, fully paid-up, sub-licensable through multiple tiers and freely transferable license to display, perform, use, reproduce, distribute, publish, create derivative works of, display, perform, sell, edit, and otherwise exploit the UGC in connection with the Service and MVPCAST's (and its successor's) business, including without limitation for promoting and redistributing your UGC or part of or all of the Service (and derivative works thereof) in any media formats or medium now or hereafter in existence. For the avoidance of doubt, the foregoing license includes, but is not limited to, the right to reproduce, distribute, display, perform, make derivative works from or otherwise exploit your UGC in proximity with or in connection with any third party content.
(ii) grant each Team User non-exclusive license to access your UGC through the Service, and to use, reproduce, distribute, publish, prepare derivative works of, display and perform such UGC solely as permitted through the functionality of the Service and under these Terms.
(iii) acknowledge that, in connection with the Service, MVPCAST will store your UGC on your behalf for use among and by your Team (whether enabled and displayed via your own player or a MVPCAST embedded player), but that (A) while MVPCAST will use all reasonable commercial efforts to maintain the security of your UGC while stored, it does not guarantee that unauthorized users will not be able to access, download or otherwise manipulate or copy such UGC, and (B) while MVPCAST will use all reasonable commercial efforts to maintain the security of your UGC, MVPCAST does not employ a digital rights management system with respect to the Service (and therefore your UGC), and further does not guarantee that users will not be able to access, download or otherwise manipulate or copy such UGC.
(iv) agree that MVPCAST shall have the right to market and promote your UGC and related Producer Marks in connection with the Service, including by including your UGC in search results on the Service. "Producer Marks" means trademarks, trade names, service marks, logos and other indicia of source or business identifiers used by you and uploaded as part of your UGC. In accordance with the grant of such rights and subject to this Agreement, you hereby grant MVPCAST a royalty-free, non-exclusive, worldwide right and license to use, reproduce and display the Producer Marks solely in connection with the marketing and promotional considerations contemplated by this Agreement. You reserve all other rights in and to the Producer Marks, and all goodwill associated with any use by MVPCAST of the Producer Marks will inure solely to your benefit.
(c) MVPCAST reserves the right to limit the number of Users who may be part of a Team ; restrictions on Team members, if any, shall be set forth in these Terms with respect to your use of the Service.
(d) In addition:
(i) You acknowledge and agree that:
(A) Your UGC does not and will not violate any of the "Prohibited Uses" set forth in Section 5 of these Terms.
(B) Violators of third-party rights may be subject to criminal and civil liability. MVPCAST reserves all rights and remedies against any Users who violate these Terms.
(C) You understand that MVPCAST reserves the right to discontinue any aspect of the Service at any time, including the right to discontinue the display of any UGC or linked or embedded content either generally or in specific cases.
(D) For the avoidance of doubt, you are not entitled to any compensation from MVPCAST for any UGC for any reason.
(E) Your UGC does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Service.
(F) The rights granted in this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform sound recordings (and the musical works embodied therein), all on a royalty-free basis. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post or transmit such sound recordings to or through the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to MVPCAST under these Terms.
(G) If you are a composer or author of a musical work and are affiliated with a performing rights organization (a "PRO"), then you must notify your PRO of the royalty-free license you grant through these Terms to us. You are solely responsible for ensuring your compliance with the relevant PRO's reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms.
(H) You are solely responsible for all of your UGC and you hereby recognize and affirm that the Service is merely providing you the means to produce and distribute your UGC. Accordingly, you shall be solely responsible for your own UGC and the consequences of posting or publishing it. You hereby affirm, represent, and warrant that:
(I) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize MVPCAST and Users to use and distribute your UGC as necessary to exercise the rights and licenses granted by you in these Terms and in the manner contemplated by MVPCAST and these Terms, including without limitation the use and distribution of UGC that includes likeness, images and other depictions of other persons and entities.
(II) Your UGC does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity.
(e) MVPCAST does not control your UGC posted by you and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for your UGC and any other material that you submit to MVPCAST.
(f) TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING YOUR OBLIGATIONS UNDER SECTION 14 BELOW IN ANY WAY, YOU SPECIFICALLY ACKNOWLEDGE THAT MVPCAST SHALL NOT BE LIABLE FOR UGC OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
5. Prohibited Uses
YOU REPRESENT, WARRANT, AND COVENANT TO MVPCAST THAT YOU WILL NOT DO ANY OF THE FOLLOWING (collectively, “Prohibited Uses”):
(a) UPLOAD TO OR CREATE ON THE SERVICE ANY UGC THAT VIOLATES ANY LAW, REGULATION, TREATY OR THIRD PARTY RIGHT (INCLUDING, WITHOUT LIMITATION, TRADE SECRET, INTELLECTUAL PROPERTY, PRIVACY, OR PUBLICITY RIGHTS);
(b) POST, UPLOAD TO, OR CREATE ANY UGC THAT IS FALSE OR MISLEADING, UNLAWFUL, OBSCENE, DEFAMATORY, LIBELOUS, THREATENING, PORNOGRAPHIC, VULGAR, HARASSING, HATEFUL, RACIALLY OR ETHNICALLY OFFENSIVE, OR ENCOURAGES VIOLENT CONDUCT OR CONDUCT THAT WOULD BE CONSIDERED A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY, VIOLATE ANY LAW, OR, IN MVPCAST'S SOLE DISCRETION, IS OTHERWISE INAPPROPRIATE;
(c) POST ADVERTISEMENTS OR SOLICITATIONS OF BUSINESS;
(d) IMPERSONATE ANOTHER PERSON OR ENTITY, WHETHER ACTUAL OR FICTITIOUS, FALSELY CLAIM AN AFFILIATION WITH ANY PERSON OR ENTITY, OR ACCESS THE SERVICE ACCOUNTS OF OTHERS WITHOUT PERMISSION, MISREPRESENT THE SOURCE, IDENTITY, OR CONTENT OF INFORMATION TRANSMITTED VIA THE SERVICE, OR PERFORM ANY OTHER SIMILAR FRAUDULENT ACTIVITY;
(e) USE THE SERVICE FOR ANY PURPOSE OTHER THAN TO ACCESS THE SERVICE AS OFFERED BY MVPCAST;
(f) CIRCUMVENT, DISABLE OR OTHERWISE INTERFERE WITH SECURITY-RELATED FEATURES OF THE SERVICE OR FEATURES THAT PREVENT, LIMIT OR RESTRICT USE OR COPYING OF ANY MATERIALS OR ANOTHER USER'S UGC;
(g) RENT, LEASE, LOAN, SELL, RESELL, SUBLICENSE, DISTRIBUTE OR OTHERWISE TRANSFER THE LICENSES GRANTED HEREIN, A TEAM OR ANY MATERIALS;
(h) DELETE INDICATIONS OR NOTICES REGARDING THE COPYRIGHT OR OTHER PROPRIETARY RIGHTS ON THE SERVICE OR ANY THIRD PARTY CONTENT;
(i) MAKE UNSOLICITED OFFERS, ADVERTISEMENTS, PROPOSALS, OR SEND JUNK MAIL OR SPAM TO OTHER USERS. THIS INCLUDES, BUT IS NOT LIMITED TO, UNSOLICITED ADVERTISING, PROMOTIONAL MATERIALS, OR OTHER SOLICITATION MATERIAL, BULK MAILING OF COMMERCIAL ADVERTISING, CHAIN MAIL, INFORMATIONAL ANNOUNCEMENTS, CHARITY REQUESTS, AND PETITIONS FOR SIGNATURES;
(j) USE THE SERVICE FOR ANY ILLEGAL PURPOSE, OR IN VIOLATION OF ANY LOCAL, STATE, NATIONAL, OR INTERNATIONAL LAW, INCLUDING, WITHOUT LIMITATION, LAWS GOVERNING INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS, AND DATA PROTECTION AND PRIVACY;
(k) DEFAME, HARASS, ABUSE, THREATEN OR DEFRAUD USERS, OR COLLECT, OR ATTEMPT TO COLLECT, PERSONAL INFORMATION ABOUT USERS OR THIRD PARTIES WITHOUT THEIR CONSENT, OR, EXCEPT AS EXPRESSLY AUTHORIZED HEREIN, USE MATERIALS, THIRD PARTY UGC, OR OTHER CONTENT ON THE SERVICE FOR ANY COMMERCIAL USE, IT BEING UNDERSTOOD THAT, OTHER THAN AS EXPRESSLY STATED HEREIN, THE MATERIALS, THIRD PARTY UGC AND OTHER CONTENT AVAILABLE ON THE SERVICE IS FOR PERSONAL, NON-COMMERCIAL USE ONLY;
(l) REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OF THE SERVICE OR ANY PART THEREOF, EXCEPT AND ONLY TO THE EXTENT THAT SUCH ACTIVITY IS EXPRESSLY PERMITTED BY APPLICABLE LAW NOTWITHSTANDING THIS LIMITATION;
(m) ACCESS OR USE ANY AUTOMATED PROCESS (SUCH AS A ROBOT, SPIDER, SCRAPER, OR SIMILAR) TO ACCESS THE SITE IN VIOLATION OF OUR ROBOT EXCLUSION HEADERS, OR FOR THE PURPOSE OF SCRAPING ALL OR A SUBSTANTIAL PORTION OF THE CONTENT OF THE SITE (OTHER THAN IN CONNECTION WITH BONA FIDE SEARCH ENGINE INDEXING), OR AS MAY OTHERWISE BE EXPRESSLY PERMITTED BY MVPCAST;
(n) MODIFY, ADAPT, TRANSLATE OR CREATE DERIVATIVE WORKS BASED UPON THE SERVICE OR ANY PART THEREOF, EXCEPT AND ONLY TO THE EXTENT THAT SUCH ACTIVITY IS EXPRESSLY PERMITTED BY APPLICABLE LAW NOTWITHSTANDING THIS LIMITATION;
(o) INTENTIONALLY INTERFERE WITH OR DAMAGE THE OPERATION OF THE SERVICE OR ANY USER'S ENJOYMENT OF THEM, BY ANY MEANS, INCLUDING UPLOADING OR OTHERWISE DISSEMINATING VIRUSES, ADWARE, SPYWARE, WORMS, OR OTHER MALICIOUS CODE;
(p) TAKE ANY ACTION THAT MAY UNDERMINE MVPCAST'S USER FEEDBACK, RATING OR DISCUSSION SYSTEMS (SUCH AS DISPLAYING, IMPORTING OR EXPORTING INFORMATION OFF THE SERVICE, USING INFORMATION ON THE SERVICE FOR PURPOSES UNRELATED TO THE SERVICE, OR IMPROPERLY MANIPULATING OR USING THE SYSTEM);
(q) TAKE ANY ACTION THAT IMPOSES OR MAY IMPOSE (IN MVPCAST'S SOLE DISCRETION) AN UNREASONABLE OR DISPROPORTIONATELY LARGE LOAD ON MVPCAST'S INFRASTRUCTURE OR INTERFERES OR ATTEMPTS TO INTERFERE WITH THE PROPER WORKINGS OF THE SERVICE OR ANY ACTIVITIES CONDUCTED ON THE SERVICE;
(r) BYPASS ROBOT EXCLUSION HEADERS OR OTHER MEASURES MVPCAST MAY USE TO PREVENT UNAUTHORIZED ACCESS TO THE SERVICE;
(s) UPLOAD OR POST ANY UGC THAT CONTAINS ADVERTISING OR OTHER PROMOTIONAL MATERIAL, INCLUDING LINKS TO SUCH MATERIAL UNLESS EXPRESSLY AUTHORIZED BY MVPCAST;
(t) CREATE MORE THAN THE MAXIMUM NUMBER OF TEAMS THAT MAY BE DESIGNATED BY MVPCAST FROM TIME TO TIME;
(u) USE THE SERVICE TO STREAM SPORTS EVENTS FOR BETTING, GAMBLING, WAGERING OR OTHER GAMING PURPOSES; OR
(v) ATTEMPT TO DO ANY OF THE ACTS DESCRIBED IN THIS SECTION , OR ASSIST OR PERMIT ANY PERSON IN ENGAGING IN ANY OF THE ACTS DESCRIBED IN THIS SECTION.
(a) General. You agree that MVPCAST, without penalty, may suspend or terminate any account (or any part thereof) you may have with MVPCAST or your use of the Service or any Team, and remove and discard all or any part of your account, User profile, and any UGC, at any time if MVPCAST determines in its own sole discretion that you have violated these Terms. MVPCAST may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof (including without limitation all Materials), with or without notice. You agree that any termination or suspension of your access to the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that MVPCAST will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies MVPCAST may have at law or in equity. As discussed in Section 7, MVPCAST does not permit copyright infringing activities on the Service, and may terminate access to the Service, and remove any UGC or other content submitted by any Users who are in MVPCAST’s sole discretion found or believed to be repeat infringers. You may terminate these Terms at any time by discontinuing use of any and all parts of the Service.
(b) In addition:
(i) MVPCAST retains the absolute right to immediately suspend or terminate your account, and terminate this Agreement, if the charges to your credit card or other payment service for any fees are refused for any reason. Upon any such termination of your account, you will remain obligated to pay all outstanding fees and charges relating to your use of the Service or commitment to pay for services before termination, including unpaid subscription fees.
(ii) You may terminate your subscription by contacting MVPCAST customer support at support@MVPCAST.com. Unused fees are non-refundable and, if applicable, MVPCAST reserves the right to charge you the early termination fee agreed to by you at the time you subscribed to the Service. For clarity, no fees payable by you hereunder are refundable upon termination of these Terms by you. In addition to the foregoing, MVPCAST may charge you a fee for reactivation of any terminated or suspended account and the recovery of any UGC.
(iii) If you terminate your Service or if MVPCAST terminates your account for cause (i.e., as a result of your breach of any obligations, covenants, representations, warranties, or terms in these Terms), MVPCAST reserves the right to charge you fees through the end of your subscription term; provided that you shall have access to the Service in exchange for such fees through the end of your subscription term so long as it complies with these Terms. If MVPCAST terminates your use of any part or all of the Service for convenience prior to the completion of your subscription period, your sole remedy is a pro-rata refund of the purchase price paid for the unavailable service.
(c) Effect of Termination. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, 3, 4, 5, 6, 7 and 12 – 16.
7. Copyright Infringement Notification
(a) If you are a copyright owner or an agent thereof (the "Copyright Owner") and believe that any content on the Service infringes your copyrights, you may submit a notification pursuant to Title 17, United States Code, Section 512(c)(3), the Digital Millennium Copyright Act ("DMCA"). This notification of claimed infringement must be a written communication provided to the designated agent of MVPCAST that includes the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the Copyright Owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MVPCAST to locate the material.
(iv) Information reasonably sufficient to permit MVPCAST to contact the Copyright Owner, such as an address, telephone number, and, if available, an electronic mail address at which the Copyright Owner may be contacted.
(v) A statement that the Copyright Owner has a good faith belief that use of the material in the manner complained of is not authorized by the Copyright Owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the Copyright Owner of an exclusive right that is allegedly infringed.
(b) MVPCAST's registered designated copyright agent to receive notifications of claimed infringement is: Mr. Sergey Blyashov. His contact information is as follows:
(c) Only DMCA notices should go to the designated copyright agent; any other comments, requests, or other communications should be directed to MVPCAST customer service at support@MVPCAST.com. Any notification of claimed infringement that does not comply with the DMCA's requirements, is invalid.
(d) If you receive notice from MVPCAST that your content has been taken down pursuant to a notification of alleged infringement and believe that this takedown is improper or incorrect, you may provide MVPCAST with a counter notification. To be valid, a counter notification must be a written communication provided to MVPCAST's designated agent as mentioned in Section 7(b) that includes substantially the following:
(i) Your physical or electronic signature.
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(iii) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(iv) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, the jurisdiction of the Federal District Court for the Southern District of California, and that you will accept service of process from the Copyright Owner who provided notification as mentioned in Section 7(a) or an agent of such person.
(e) MVPCAST reserves the right to terminate without notice any User's access to the Service if that User is determined by MVPCAST to be a "repeat infringer." In addition, MVPCAST accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
8. Registration, Accounts and Passwords
(a) If you become a registered User and create an account on the Service, you agree to be responsible and/or liable for maintaining the confidentiality of passwords or other account identifiers which you choose and all activities that occur under such password or account identifiers.
(b) You agree to notify MVPCAST of any loss of your password or account identifiers and any unauthorized use of your password or account identifiers.
(c) Without limiting anything in this Agreement, MVPCAST will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section 8.
9. Embeddable Player Feature
MVPCAST provides an embeddable player feature on the Service. Subject to the terms and conditions of these Terms, MVPCAST hereby grants you a limited, non-exclusive, freely revocable license to incorporate such embeddable player into your own websites, provided that you include a prominent link back to the Service on the pages containing the embeddable player. You hereby represent and warrant that you shall not to circumvent, disable or otherwise interfere with security related features of the embeddable player or features that prevent or restrict use or copying of any Material and third party UGC (including, without limitation, Audiovisual Content) or enforce limitations on use of the embeddable player or the Material and third party UGC (including, without limitation, Audiovisual Content) therein.
10. Third-Party Websites
(b)In order to use the Paid Service, you agree to pay a recurring subscription fee to MVPCAST or a single month or other non-recurring fee (collectively, "Subscription Fee"). Subscriptions automatically renew for successive terms (as selected by you) until cancelled by you as further described below.
(I) YOU MUST PAY THE INITIAL SUBSCRIPTION FEE PRIOR TO USING THE SERVICE. BY PURCHASING A SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS OF THE SAME DURATION (E.G., MONTHLY, ANNUAL) UNLESS YOU CANCEL YOUR SUBSCRIPTION AS FURTHER DESCRIBED BELOW. YOU AUTHORIZE MVPCAST TO CHARGE THE PAYMENT METHOD THAT WE OR OUR SERVICE PROVIDER HAS ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-APPLICABLER SUBSCRIPTION FEE PLUS ANY APPLICABLE TAXES. IF YOU PAY FOR YOUR SUBSCRIPTION ON A MONTHLY BASIS, THEN, DEPENDING ON YOUR SUBSCRIPTION TIER, WE WILL PROCESS YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION EVERY 31 DAYS, 32 DAYS, OR ON THE SAME DATE EACH MONTH. IF YOU PAY FOR YOUR CURRENT SUBSCRIPTION ON AN ANNUAL BASIS, THEN WE WILL PROCESS YOUR PAYMENT FOR ANY RENEWAL SUBSCRIPTION ON THE FIRST DAY OF THE RENEWAL TERM. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED BY LAW.
(ii) Cancellation Refund Policy. YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE AT ANY TIME, AFTER WHICH WE WILL NOT RENEW YOUR SUBSCRIPTION. PLEASE CONTACT SUPPORT@MVPCAST.COM TO DISPUTE A CHARGE, CANCEL YOUR SUBSCRIPTION, OR REQUEST A REFUND. FOR THE AVOIDANCE OF DOUBT, YOU DO NOT HAVE A RIGHT OF WITHDRAWAL, BUT YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME AS DESCRIBED ABOVE.
(iii) You acknowledge that you may be required to agree to additional or superseding terms or agreements if your subscription is automatically renewed as described above. For example, if you would like a subscription to the Service that is different from MVPCAST's standard subscription (i.e., a promotional subscription), then you may be required to agree to an additional set of terms.
(iv) Your access to the Paid Service will not be established until MVPCAST has verified that the credit card or other payment information you provide MVPCAST for payment is accurate and that your credit card account or other payment method account is in good standing.
(v) You are required to keep your billing information current, complete and accurate (such as a change in billing address, credit/debit card number or expiration date) and notify MVPCAST if your selected payment method is canceled (e.g., for loss or theft). You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your children, family, or friends). You agree to pay any outstanding balance in full within thirty (30) days of purchase of a particular product or service on the Service. Additionally, MVPCAST reserves the right to deactivate your account if payment is past due, regardless of the dollar amount. You are responsible for any overdraft fees charged to your payment account.
(vi) You are responsible for paying any governmental taxes imposed on your use of the Service, including, but not limited to, sales, use or value-added taxes. To the extent MVPCAST is obligated to collect such taxes, the applicable tax will be added to your billing account.
(vii) MVPCAST may impose an additional transaction fee based on transactions associated with Service, including a transaction fee applied to purchases from third parties. Such transaction fee will be disclosed to you prior to your agreement to the relevant transaction.
(e) Notwithstanding anything to the contrary in these Terms, free trials to the Paid Service are provided, to the fullest extent permitted by law, “AS IS” and without any warranty of any kind. MVPCAST reserves the right to limit (i) the number of free trials per User and (ii) the features of the Paid Service for Free Trialers. MVPCAST may terminate all or any free trial at any time. At the end of a free trial, MVPCAST may delete UGC for any Free Trialer who does not subscribe to the Paid Service.
11. Bandwidth Limitations
We offer a certain amount of bandwidth to Users, as set forth on the Service. If we believe you are over-burdening our servers (e.g., consistently exceeding prescribed bandwidth limits for your subscription), we may require you to upgrade to another service level or pay a surcharge.
TO THE FULLEST EXTENT PERMITTED BY LAW, CONTENT ON THE SERVICE, INCLUDING WITHOUT LIMITATION, MATERIALS, AND UGC, IS PROVIDED ON AN "AS IS" BASIS WITH NO WARRANTY.
(b) FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, MVPCAST MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. THE SERVICE MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET AND NECESSARY SERVICES OF THIRD PARTY SERVICE OR INFRASTRUCTURE PROVIDERS.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MVPCAST OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU WILL USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE OR ANY THIRD-PARTY SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
(d) You understand that when using the Service, you will be exposed to UGC from a variety of sources, and that MVPCAST is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such UGC or other content. You further understand and acknowledge that you may be exposed to UGC that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against MVPCAST with respect thereto. MVPCAST does not endorse any UGC or any opinion, recommendation, or advice expressed therein, and MVPCAST expressly disclaims any and all liability in connection with the UGC. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST MVPCAST WITH RESPECT THERETO AND AGREE TO INDEMNIFY AND HOLD MVPCAST, ITS OWNERS/OPERATORS, AFFILIATES, SUPPLIERS, AND/OR LICENSORS HARMLESS TO THE FULLEST EXTENT PERMITTED BY LAW REGARDING ALL MATTERS RELATED TO YOUR CONTENT AND ANY USE OF THE SERVICE THAT IS PROHIBITED UNDER SECTION 5.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MVPCAST, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF: (I) THE SERVICE, YOUR ACCESS, USE OR INABILITY TO USE THE SERVICE; (II) ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE (INCLUDING LOSS PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE SERVICE); (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE OR IN THE CREATION OF ANY CONTENT, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL IDENTIFIABLE INFORMATION STORED THEREIN, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MVPCAST OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO MVPCAST DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM AND ONE HUNDRED DOLLARS.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF MVPCAST, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless MVPCAST, its officers, directors, employees, affiliates, agents, licensors, suppliers, successors, assigns, and their past and present officers, directors and employees, representatives and agents from and against any losses, claims, damages, liabilities, including legal fees and expenses, arising out of:
(a) any claim due to or arising out of your violation of these Terms, including but not limited to a claim arising out of a breach of your representations or warranties made hereunder;
(b) your use or misuse of or access to the Service;
(c) your violation of any law, regulation or third party right, including without limitation any copyright, property, or privacy right; or
(d) any claim that you or your UGC caused damage or loss to a third party.
MVPCAST reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify MVPCAST, and you agree to cooperate with MVPCAST's defense of these claims.
15. Release for Disputes between Users
MVPCAST does not control the actions of its Users. If you have a dispute with one or more Users, to the fullest extent permitted by law, you release MVPCAST (and MVPCAST's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
(a) Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by MVPCAST without restriction.
(b) Waiver and Severability. The failure to require performance of any provision shall not affect either MVPCAST's or your right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of these Terms is found to be unenforceable, such portion will be modified to reflect the parties' intention and only to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
(d) Choice of Law and Forum. These Terms shall be governed and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. If a lawsuit or court proceeding is permitted under these Terms, then you and MVPCAST agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located within San Diego County in the State of California.
(e) Dispute Resolution and Arbitration
(i) Generally. In the interest of resolving disputes between you and MVPCAST in the most expedient and cost effective manner, you and MVPCAST agree that every dispute arising out of or in any way related to these Terms or your use of the MVPCAST Service will be resolved by binding arbitration, except as provided in this Section 16(e). Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms or your use of the MVPCAST Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MVPCAST ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(ii) Exceptions. Despite the provisions of Section 16(e)(i), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
(iii) Arbitrator. Any arbitration between you and MVPCAST will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org or by contacting MVPCAST.
(iv) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or by electronic mail (“Notice”). MVPCAST's address for Notice is: sb@MVPCAST.com and support@MVPCAST.com. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or MVPCAST may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or MVPCAST must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, MVPCAST will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by MVPCAST in settlement of the dispute prior to the arbitrator’s award; or (iii) $250. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(v) Fees. Any arbitration hearing will take place at a location to be agreed upon in San Diego County, California If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse MVPCAST for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
(vi) No Class Actions. YOU AND MVPCAST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MVPCAST agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
(vii) Modifications to this Arbitration Provision. If MVPCAST makes any future change to this arbitration provision, other than a change to MVPCAST's address for Notice, you may reject the change by sending us written notice within 30 days of the change to MVPCAST's address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(viii) Enforceability. If Section 16(e) is found to be unenforceable or if the entirety of this Section 16(e) is found to be unenforceable, then the entirety of this Section 16(e) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16(d) will govern any action arising out of or related to these Terms.
(f) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
(g) Entire Agreement. This is the entire agreement between you and MVPCAST relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or policies made by MVPCAST as set forth above.
(h) No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
(i) No Third Party Beneficiaries. The parties specifically disavow any desire or intention to create a "third party" beneficiary contract, and specifically declare that except for rights of third parties in certain intellectual property as described in Section 2(a), no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.