A. Who Can Use the App. You may use our App and the Service only if you can form a binding contract with Flurry Live, Inc. (the “Company”, “we”, “us”, “our”) and only in compliance with these Terms and all applicable local, national and international laws. In order to access some features of the Service, you will have to create a Flurry account or authenticate with a third-party authentication service such as Facebook or Twitter. When you create your Flurry account, you must provide us with accurate and complete information. You may never use another user’s account without permission. Any use or access by anyone under the age of 13 is prohibited. If you open an account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms, and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
B. License to App; Use of the Service; Restrictions. Unless otherwise allowed via an authorized means designated by the Company or expressly stated in writing by the Company, you are granted a limited, non-sublicensable, non-exclusive, non-transferable and revocable license (i.e. a personal and limited right) to install the App and use the Service for your non-commercial personal use only in accordance with these Terms. We reserve the right to discontinue or modify any aspect of the App and/or the Service at any time. You may not make copies, translations, or modifications of or to the App, or alter, obscure, or remove the copyright notice on any copy of the App. You are prohibited from assigning, selling, distributing, leasing, renting, sublicensing, or transferring the App or this license, and from reverse-engineering, disassembling, or decompiling the App or otherwise attempting to discover the source code or structural framework of the App.
C. What Constitutes the Service.These Terms apply to all Users, including any User who is also a contributor of Content via the Service. The App offers features that enable Users to upload Content. Some of these features enable multiple users to upload Content to create a single, combined, and jointly created live video event. A user who initiates the creation of such jointly created live video event is called a “Creator” while any other user who contributes content to such event is called a “Contributor”. “Content” includes the text, software, scripts, graphics, photos, sounds, music, videos, broadcasts, audiovisual combinations, interactive features, comments, contributions, questions and other materials you may view on, access through, or contribute to the Service.
D. How You Can Use the App. Users can use the App for free and/or subscribe to Content creator accounts to unlock special perks, premium access, and additional App functionality, subject to agreement with the <Subscription Terms>, which are incorporated by reference into these Terms.
E. Third Party Links. The Service may contain links to or mentions of third party websites, apps, advertisers, events, activities, offers, or other entities that are not owned or controlled by us. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party websites or apps. In addition, we will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve the Company from any and all liability arising from your use of any third-party website or app.
F. Account Security. You are solely responsible for the activity that occurs on your account, and you must keep your account secure. Please notify us immediately of any breach of security or unauthorized use of your account. While we work to protect the security of your Content and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures.
G. Receiving and Sending Text Messages and Inviting Your Contacts. By signing up for the service, you agree to receive text messages from us, and you represent and warrant that each person you add to your Flurry Live, Inc. contacts has consented to receive text messages from you and to receive text messages from you through Flurry Live, Inc. Further, you acknowledge that when you agree to invite your contacts to the service, Flurry Live, Inc. may send SMS/text messages/emails to your contacts on your behalf. Note that Flurry Live, Inc. may partner with third parties to deliver such SMS/Text messages/emails.
Text Messaging Fees: We do not charge a fee to use Flurry Live, Inc. however you should be aware that when you use Flurry Live, Inc to send or receive text messages, you may be charged for the transmission and/or receipt of such messages by your telecommunications service provider in accordance with standard text messaging rates. Additionally, text messages sent and/or received count towards any message quota established by your provider. Please be aware that texting charges can fluctuate internationally. We suggest that you contact your telecommunications service provider for any questions concerning international texting charges.
A. Restriction on Distribution. You agree not to distribute in any medium any part of the Service or the Content without the Company’s prior written authorization except directly through the App, unless the Company makes available the means for such distribution through functionality offered by the Service and so long as any such distribution continues to be subject to the commercial use restrictions specified in Section 2(D).
B. Restriction On Modification. You agree not to alter, modify, build upon or block any portion or functionality of the Service.
C. Restriction on Accessing Content. You agree not to access Content through any technology or means other than the App itself, or via an authorized means designated by the Company.
D. Restriction On Commercial Use.Unless otherwise agreed upon in writing the Company or via an authorized means designated by the Company (including, without limitation, digital goods offered via the App), you agree not to use the Service for any commercial uses. Examples of prohibited commercial uses include, but are not limited to, the following:
E. Restriction on Use of Communication Systems. You agree not to use the communication systems provided by the Service (e.g., comments, video chat, text, email) for any commercial solicitation purposes, nor to solicit, for commercial purposes, any Users of the Service.
F. Restriction on Automated Attacks. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to the Company’s or its service provider’s servers in a given period of time than a human can reasonably produce in the same period by using a single conventional on-line web browser.
G. Restriction On Collection Of Data. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, unless you have access to such information through your interaction with Users via the App.
3. Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
A. The Content, the trademarks, service marks and logos (“Marks”) on the Service, are owned by or licensed to the Company, subject to copyright and other intellectual property rights under the law.
B. Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms.
C. You shall not download, copy, reproduce, distribute, transmit, broadcast, retransmit, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of the Company or the respective licensors of the Content. The Company and its licensors reserve all rights not expressly granted in and to the Service and the Content.
D. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
E. You may not serve advertisements against, charge a viewing fee for, or otherwise monetize such Content unless otherwise specifically agreed to by the Company in writing.
A. Submitting Content. Once you are a registered account User, you may submit Content to the Service, including live videos, audio, images, photos and user comments. You retain all ownership rights in, and are solely responsible for, the Content you submit. You understand that we do not guarantee any confidentiality with respect to any Content you submit. If you are a Contributor to a live video event, you will not control the Content, including determining whether or not it is publicly visible.
B. Responsibility For Your Content.You are solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service and you recognize and affirm that the Service is merely providing you the means to produce and distribute your Content. You affirm, represent, and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; (ii) your Content does not and will not 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; (iii) your Content does not slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity; (iv) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access infringing content outside of the Service; and, (v) your Content does not include any advertisements, promotions, or solicitations of business. Further, you license to the Company all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service or other use by the Company pursuant to these Terms.
C. How the Company and Other Users Can Use Your Content. By uploading, streaming, submitting, emailing, posting, publishing or otherwise transmitting any Content to the Service, you grant the Company and /or any Users or other third parties the Company allows or designates, a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, store, reproduce, distribute, prepare derivative works of, publicly display, publicly perform, publish, transmit, broadcast and otherwise exploit the Content in connection with the Service and the Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels (including third party channels), and including in connection with any advertising, promotion or other commercial enterprise that the Company may choose to include as part of the Service. For example, we will have the right to insert, place or include all types of advertisements within or around your Content, including without limitation to running or streaming pre-rolls, mid-rolls, post-rolls, overlays, banners, campaign and companion ads and any other type of advertising units in connection with your Content. For the avoidance of doubt, any revenue collected by the Company in connection with any advertising or other commercial enterprise related to your Content, will be 100% allocated to the Company, and will not be subject to any revenue sharing arrangement, unless otherwise specifically agreed to in writing by the Company or allowed via an authorized means designated by the Company. You further agree that the Company and/or any Users or other third parties it allows or designates has the exclusive right to distribute a jointly created live video event or to commercially exploit such video event. You also hereby grant each User a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms. Nothing in these Terms shall restrict other legal rights we may have to Content, for example under other licenses. We reserve the right to remove or modify Content for any reason, including Content that we believe violates these Terms or our policies or guidelines.
D. Limitations. You acknowledge and agree that the Company may, at its option, establish limits concerning your Content, including without limitation the maximum number of days that Content will remain on the Service, and at any time throughout your use of the App such content may be deleted by the Company, with or without advance notice to you. The Company will have no responsibility or liability for Content that is deleted. We reserve the right to change, suspend or discontinue part or all of any limits concerning Content at any time, for any reason, without notice and without explanation.
E. Deactivating or Deleting Content. You may delete or deactivate Content that you upload to the Service, to the extent that such Content is not part of a jointly-created live video event. Only the Creator of a jointly-created live video event may deactivate or delete such event or certain Content from such event. If you are a Contributor to a jointly-created live video event and want to have the Content you submitted to such event removed from the Service, you must contact the Creator and request that they deactivate or delete the event, which they may do at their discretion. Furthermore, we reserve the right to remove any Content without prior notice for any or no reason. Following the deactivation, deletion or removal of any Content, the Content licenses granted in Section 4© above end, except to the extent the Content has been shared with others, and they have not deleted it, or to the extent such removed Content is part of a highlight reel, clips collection or other type of derivative work. The Company may retain server copies of any Content you submit for its internal purposes, even if such Content has been deactivated, deleted or otherwise removed from the Service.
F. Your Responsibility For Your Content To Third Parties. We respect the rights of third party creators and content owners, and expect you to do the same. You therefore agree not to post any Content that violates any law or infringes the rights of any third party.
G. No Endorsement. While the Company may, at its discretion, promote or otherwise make certain Content more or less visible, the Company does not endorse any Content submitted to the Service by any User or other licensor, or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Content.
H. Feedback You Provide. We value hearing from our Users, and are always interested in learning about ways we can make the Service better. If you choose to submit comments, ideas or feedback, you agree that we are free to use them without any restriction or compensation to you.
5. Fees and Payment
A. Subscriptions and Free Service.The Service may be made available in free or paid versions, with different service levels, access to Content and/or features available under each plan. We reserve the right to change, suspend or discontinue part or all of any version of the subscription-based and/or free versions of the Service, for any reason, without notice and without explanation.
B. Billing. In order to purchase subscriptions through the App, you may be required to provide us with billing information, account information and/or other credentials (“Billing Information”) for a credit card, payment card or another payment system (e.g. PayPal, iTunes Account, Google Wallet or virtual currency), for which you are authorized to approve charges (each, a “Payment Source”) to allow us to collect payment from you for your use of the Service. You must provide us with true, accurate, current and complete Billing Information and maintain and promptly update your Billing Information to keep it true, accurate, current and complete.
C. Payment. You authorize us to automatically and immediately bill your Payment Source when charges for your use of any subscription account are due, without any further action on your part or other prior notice from the Company. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.
If your Payment Source is invalid, if charges billed to your Payment Source are declined or not paid or if you fail to pay charges for a paid version of the Service when due, your subscriptions may be suspended or cancelled, at our discretion.
All fees are non-refundable and non-transferable. Fees and transactions you complete through the Service may include sales tax based on the bill-to address and the applicable sales tax rate in effect at the time and location your transaction is completed. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with any fees due by you to the Company. There is no prorated refund of any fees upon any termination or cancellation. You agree to immediately pay any amounts accrued, but remaining unpaid, as of termination (if any).
The Service may allow you to “purchase” virtual currency or virtual goods via the App, but you do not own or have an ownership interest in any such currency or goods, no credit balance exists for any such virtual currency or goods, and you have no right to sell or exchange any such virtual currency or goods or receive any refund of virtual currency or virtual goods. Any virtual currency or goods gifted to Content providers may result in revenue to such Content providers and/or Flurry, provided Flurry does not guarantee any such gifts will result in revenue to such Content providers.
We may terminate your account or otherwise suspend your right to use the Service at any time, with or without cause or notice to you. Upon termination or suspension, you continue to be bound by Sections 2-6 and 8-13 of these Terms.
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing:
The Company’s designated Copyright Agent to receive notifications of claimed infringement is:
CT Corporation System
818 West Seventh Street
Los Angeles, CA 90017
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to the Company’s customer service through https://flurrylive.zendesk.com/hc/en-us. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider or User, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
YOU USE THE APP AND THE SERVICE AT YOUR OWN RISK. The Service and all Content are provided on an “as is” basis without warranty of any kind, whether express or implied. THE COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We take no responsibility and assume no liability for any Content that you or any other user or third party posts or transmits using our Service. You understand and agree that you may be exposed to Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you waive any rights or remedies you may have against the Company with respect thereto.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT OF USERS OR OTHER THIRD PARTIES; OR © UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. FURTHERMORE, YOU AGREE THAT YOU WILL NOT ASSERT ANY “MORAL RIGHTS” OR OTHER SIMILAR RIGHTS RELATING TO THE USE OF YOUR CONTENT. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO THE RELEASE OF ANY UNKNOWN OR UNSUSPECTED CLAIMS YOU MAY HAVE AGAINST THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS.
The Service is hosted and offered by the Company from its facilities in the United States of America. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless the Company, its affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) all matters related to your use of and access to the Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the Service.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction.
For any dispute you have with the Company, you agree to first contact us and attempt to resolve the dispute with us informally. If we have not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Any such arbitration shall be governed by the laws of the State of California and will be conducted in San Francisco county, California. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, except that the Company will pay for your reasonable filing, administrative, and arbitrator fees if your claim for damages does not exceed $25,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive app that does not give rise to personal jurisdiction over the Company, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. We each agree to submit to the personal jurisdiction of a court of competent jurisdiction located in San Francisco County, California for any action not subject to Section 14 (Arbitration).
These Terms, together with the Privacy Notice at /privacy-policy and any other legal notices published by the Company on the Service, shall constitute the entire agreement between you and the Company concerning the Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. We may revise these Terms from time to time and the most current version will always be available via the App. If a revision, in our sole discretion, is material, we will notify you, using whatever form and means of notification as we choose, including electronic notice. By continuing to access or use the Service after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new Terms, please stop using the Service. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.