PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”) CAREFULLY. THESE TERMS ARE A BINDING CONTRACT FOR THE USE OF STREAMING GLOBAL, INC. (“SG”) SERVICES.
BY ACCESSING OR USING SG SERVICES YOUARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU'RE PRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT AND ITS AFFILIATES). IF YOU DO NOT AGREE TO BE BOUND BY ALLOF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE SG’S SERVICES.
These Terms of Service are between Streaming Global, Inc., its Affiliates and subsidiaries, (together, “SG”) and the other signatory to the applicable Transaction Document (“Customer”). The parties agree as follows:
1. Certain Definitions
“Acceptable Use Policy” or “AUP” means SG’s Acceptable Use Policy, located at AUP, and which is incorporated by reference herein.
“Affiliate” means any entity controlling or controlled by or under common control with a party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity.
“Content” means all data, regardless of format or owner (including, but not limited to, content, websites, applications and the like), provided or identified to SG to be sent or received using the Services, and content hosted, stored, or cached by SG at the direction of Customer or its Affiliates, agents, customers, or end-users.
“Customer” means the entity that orders the Services and is responsible for the payment of fees under, and compliance with, this Agreement.
“Data Protection Addendum” means SG’s Data Protection Addendum, located at DPA, and which is incorporated by reference herein.
“Services” means the particular SG products and/or services ordered by Customer and identified in a Transaction Document. “SG” means Streaming Global, Inc, its Affiliates, or entities authorized by SG to provide a Service.
“Transaction Documents” means documents that set forth the description of the Services being purchased from SG and any additional terms set forth in Transaction Documents, Statements of Work or other documents executed by the parties.
2. Use of Service. SG shall provide the Services asset forth in the applicable Transaction Document. All rights in the Services are reserved to SG.
2.1 Each party shall perform its obligations as set forth in this Agreement. Except as expressly permitted in a particular Transaction Document, Customer shall not resell the Services (whether for a fee or gratis), in whole or in part, to any third party nor enter into any similar relationship with a third party to enable the purchase or use of the Services through Customer. For purposes of the foregoing, end-users accessing Customer’s web site are not considered to be using the Services.
2.2 Non-SG Services. Customer may choose to use services not provided by SG (“Non-SG Services”) with the Services and in doing so grants SG permission to interoperate with the Non-SG Services as directed by Customer or the Non-SG Services. Unless specified in a Transaction Document: (a) SG does not warrant or support Non-SG Services, (b) as between SG and Customer, Customer assumes all responsibility for the Non-SG Services and any disclosure, modification or deletion of Customer Data by the Non-SG Services and (c) SG shall have no liability for, and Customer is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-SG Services or any change in the ability of SG to interoperate with the Non-SG Services.
2.3 Responsibilities. Customer (a) shall comply with the SG Acceptable Use Policy available at AUP LINK; (b) shall use the Services according to the Documentation; (c) shall be responsible for using commercially reasonable efforts to prevent unauthorized access to or use of the Services; (d) shall promptly notify SG of any unauthorized access or use of the Services; (e) shall not use the Services to store, transmit or display Customer Data for fraudulent purposes or in violation of applicable laws and governmental regulations; (f)shall not make the Services available to, or use the Services for the benefit of, anyone other than Customer’s own personnel or end users; (g) shall not use the Services to store, transmit or display Malicious Code; (h) shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein; (i) shall not attempt to gain unauthorized access to any of SG’s systems or networks; (j) shall not permit direct or indirect access to or use the Services in a way that circumvents a usage limit; (k) shall not sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as integrated with its own offerings that provide additional functionality to its end users; (l) shall not copy the Services or any part, feature, function, or user interface thereof; (m) shall not access the Services or use the Documentation to develop a competitive product or service; or (n) shall not reverse engineer the Services (to the extent a restriction on reverse engineering is permitted by applicable law).
2.4 Service Notices. If SG becomes aware that Customer may violate these Terms, SG will notify the Customer by email (the “Service Notice”) and request Customer to take reasonably appropriate action, including cessation of problematic usage, changing a configuration, updating credentials or removing applicable Customer Data. If Customer fails to comply with a Service Notice within the time period set forth in the Service Notice, SG may suspend Customer’s access to the Services until the requested action is taken. If Customer fails to take the required action within ten (10) days or on two or more occasions during any rolling twelve (12) month period, SG may terminate the Agreement immediately for cause. All limitations of access, suspensions, and terminations for cause shall be made in SG’s sole discretion and SG shall not be liable to Customer or any third party for any termination of Customer’s account or access to the Services.
3.0 Terms and Termination. The “Term” is set forth in the Transaction Document and automatically renews for successive terms of equal duration unless either party notifies the other of its intent to not renew at least sixty days prior to the expiration of the applicable Term. Termination of an individual Transaction Document shall not terminate any Services under other Transaction Documents. These Terms & Conditions shall apply to, and remain effective for the Term of, any extant Transaction Document. If no Transaction Document is in effect, either party may terminate these Terms & Conditions at any time upon notice to the other party.
Either party may terminate a Transaction Document if the other materially breaches this Agreement and such breach continues unremedied for thirty days following notice or such other period designated herein. SG may immediately suspend all Transaction Documents for payments not received within thirty days of date.
Customer acknowledges and confirms that the fees set forth in the Transaction Document are committed for the Term and will become payable regardless of actual use of Services. Except for a termination by Customer as expressly permitted hereunder, if a Transaction Document is terminated prior to end of the Term for any reason (including if Customer ceases use of the Services prior to expiration or termination of the Term), such a termination shall constitute a material breach of the Agreement. Because it is very difficult to accurately estimate the harm caused by this breach or any other material breach of the Agreement by the Customer, the parties agree that as compensation and not as a penalty SG shall be entitled to invoice, and Customer agrees to pay, the committed fees outstanding for the remainder of the then-current Term, in addition to all other fees outstanding at the date of termination.
4.0 Fees and Payments. If the Transaction Document specifies that payment will occur by a method other than a credit card, Customer will provide a purchase order number in the applicable amount (or reasonable alternative proof of Customer’s ability to pay the fees specified in a Transaction Document), and promptly notify SG of any changes necessary for payment of an invoice. SG will invoice Customer either monthly or according to the billing frequency stated in the Transaction Document. Invoices to be paid by credit card are due on the invoice date, all other invoices are due net 30 days from the invoice date. If any invoiced amount is not received by SG by the due date, then without limiting SG’s rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) SG may condition future subscription renewals and Transaction Documents on shorter payment terms. If Customer is paying for Services by credit card, Customer will provide SG with valid credit card information and promptly notify SG of any changes necessary to charge the credit card. The provision of credit card information to SG authorizes SG to charge the credit card for all Services specified in a Transaction Document, and any renewal subscription.
4.1 Suspension of Service and Acceleration. If any amount owing by Customer is 30 or more days overdue (or 10 or more days overdue in the case of invoices to be paid by credit card), SG may, without limiting any rights and remedies, accelerate Customer’s unpaid fee obligations to become immediately due and payable, and suspend the provision of Services to Customer until the overdue amounts are paid in full. SG will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with Section 16 (Integration, Amendment, Severability, and Electronic Communications), before suspending services to Customer.
4.2 Payment Disputes. SG will not exercise any rights to suspend Services, accelerate payments, impose late charges or change payment terms under Section 4 (Fees and Payments) with respect to an overdue amount for so long as Customer is disputing the overdue amount in good faith. The parties shall cooperate diligently to resolve the dispute.
4.3 Non-Payment. In addition to any other rights granted to SG herein, SG reserves the right to suspend or terminate Customer’s access to the Services if Customer’s account becomes delinquent. Customer agrees to pay all reasonable costs and attorneys’ fees incurred by SG with respect to collecting any past due balance. Any amount disputed by Customer pursuant to Section 4 (Fees and Payments) that is deemed by a judge or arbitrator to be due and payable to SG will be deemed to be past due as of the original due date for purposes of the calculation of interest and eligibility for attorneys’ fees and costs. No endorsement or statement to the contrary on any check or payment, or on any letter accompanying any check or payment, or elsewhere will be construed as an accord or satisfaction. SG reserves the right to require payment assurance at any time.
4.4 Taxes. SG’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer is responsible for payment of all such taxes, levies, or duties, except for taxes based solely on SG’s income. If SG has the legal obligation to pay or collect any such amounts for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides SG with a valid tax exemption certificate authorized by the appropriate taxing authority (along with an English translation, if applicable) covering such amount.
5.0 Licenses and Proprietary
5.1 Ownership and Licenses. Except for the limited rights expressly granted in these Terms of Service, neither party transfers or otherwise licenses to the other party any technology, software, or other intellectual property rights. Customer retains all right, title, and interest in and to Content. Content will not be deemed part of any Services by virtue of being located on or served from SG servers.
5.2 Your Limited License to our Intellectual Property. The materials used and displayed on the Site, including but not limited to text, software, photographs, graphics, illustrations and artwork, video, music and sound, and names, logos, trademarks and service marks, are the property of SG, or its affiliates or licensors and are protected by copyright, trademark and other laws. Any such content may be used solely for your personal, non-commercial use. You agree not to modify, reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any such material without the prior written permission of SG. SG grants you a personal, non-exclusive, non-transferable, revocable license to use the Site and any materials on the site for non-commercial purposes subject to these Terms of Use.
5.3 Marketing. Each party may use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in connection with the Services and only during the Term. Any other use of a party’s Brands requires such party’s prior written consent.
5.4 Typographical Errors. If an SG product is mistakenly listed at an incorrect price, SG reserves the right to refuse or cancel any orders placed for any product listed at the incorrect price. SG reserves the right to refuse or cancel any such orders whether the order has been confirmed and your credit card charged or not. If your credit card has already been charged for the purchase and your order is cancelled, SG shall issue a credit to your credit card account in the amount of the incorrect price.
5.5 Proprietary Rights. The Services and the Documentation are the proprietary information of SG. Subject to the limited rights expressly granted in the Agreement, SG and SG’s licensors reserve all right, title, and interest in and to the Services and the Documentation, including all related intellectual property rights. No rights are granted to Customer except as expressly set forth in the Agreement. No rights are granted to SG except as expressly set forth in the Agreement.
5.6 Government Rights. The Services may include access to software. In such case, such software is commercial computer software, as such term is defined in 48C.F.R. §2.101. Accordingly, if Customer is an agency of, or contractor to, the US Government, it receives only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. If Customer is a government agency that has a need for rights not granted under the Agreement, it must negotiate with SG to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.
6.0 Confidential Information. If the parties are subject to an effective nondisclosure or confidentiality agreement with rights and obligations at least as favorable to SG as this section, then that agreement will be deemed to supersede in its entirety the language of this section until such time as that agreement no longer applies to the then-current exchange of information. “Confidential Information” is non-public information that includes, but is not limited to, the terms of these Terms of Service, any Transaction Document, and any Service Level Agreement; information concerning SG’s pricing terms, operations, methods of doing business, technologies, technical designs, research and development, know how, trade secrets, software source code, computer programs, algorithms, technical specifications and data, testing and bench-marking procedures and results, customers, personnel, financial information and other confidential or proprietary information belonging to or provided by or on behalf of SG, or information the party receiving such information, the Customer, should reasonably know is confidential to SG. The term “Confidential Information” as used in this section does not include information that (i) was or becomes generally available to the public other than as a result of a disclosure by Customer or its directors, officers, employees, agents, contractors or advisors ("Representatives"); (ii) was or becomes available to Customer on a non-confidential basis from a source other than SG or its Representatives, provided such source is not bound by a confidentiality obligation with SG; (iii) was within Customer's possession prior to it being furnished to Customer by or on behalf of SG, provided the source of such information was not bound by a confidentiality obligation owed to SG with respect thereto; or (iv) is Content. Each party agrees that it will not use, modify, copy, or disclose to any third party Confidential Information, except in furtherance of the relationship between the parties or as required bylaw. Customer may disclose SG’s Confidential Information to Customer’s Representatives solely as necessary to meet their obligations under these Terms of Service. Customer will also ensure that all Representatives are aware of the confidential and/or proprietary nature of the Confidential Information and have themselves an obligation of confidentiality providing no less restrictive and substantially the same protections as are provided under these Terms ofService. Customer will take measures to protect Confidential Information at least as stringent as those measures that it takes to protect the confidentiality and security of its own confidential information of a similar nature, but in no event will Customer use less than reasonable care.
7.0 User Reviews, Comments, And Other Material.
7.1 YourPosts. As part of the Services, users may have an opportunity to publish, transmit, submit, or otherwise post (collectively, "Post")reviews, comments, or other materials (collectively, "UserMaterial"). In order to keep the Services enjoyable for all of our users, you must adhere to the rules below, as well as additional rules applicable to any SG-hosted site. Please carefully choose the User Material that you Post. Please limit yourself to User Material directly relevant to theServices. Moreover, you must not Post User Material that: (i) contains Inappropriate or Unsuitable Material; or (ii) improperly claims the identity of another person. Please note that if you Post User Material on SG using a third party service, such as a social network or email provider, your first and last name or other user ID may appear to the public each time you Post. We advise that you do not, and you should also be careful if you decide to, Post additional personal information, such as your email address, telephone number, or street address. You must be, or have first obtained permission from, the rightful owner of any User Material you Post. By submitting User Material, you represent and warrant that you own the User Material or otherwise have the right to grant SG the license provided below. You also represent and warrant that the Posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights. In addition, you agree to pay for all royalties, fees, and other payments owed to any party by reason of your Posting User Material. SG will remove all User Material if we are properly notified that such User Material infringes on another person's rights. You acknowledge that SG does not guarantee any confidentiality with respect to any User Material. By Posting User Material, you are not forfeiting any ownership rights in such material to SG. After Posting your User Material, you continue to retain all of the same ownership rights you had prior to Posting. By Posting your User Material, you grant SG a limited license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publicly perform, and publish such User Material through the Services and on other platforms and services worldwide, including on or through any Access Point, in perpetuity, in any media formats and any media channels now known or hereinafter created. The license you grant to SG is non-exclusive(meaning you are not prohibited by us from licensing your User Material to anyone else in addition to SG), fully-paid, royalty-free (meaning that SG is not required to pay you for the use of your User Material), and sublicensable (so that SG is able to use its affiliates, subcontractors, and other partners, such as internet content delivery networks, to provide the Services). By Posting your User Material, you also hereby grant each user of the Services anon-exclusive, limited license to access your User Material, and to use, display, reproduce, distribute, and perform such User Material as permitted through the functionality of the Services and under these Terms.
7.2 Third Party Posts. Despite these restrictions, please be aware that some material provided by users may be objectionable, unlawful, inaccurate, or inappropriate. SG does not endorse any User Material, and User Material that is Posted does not reflect the opinions or policies of SG. We reserve the right, but have no obligation, to monitor User Material and to restrict or remove User Material that we determine, in our sole discretion, is inappropriate or for any other business reason, as permitted by law. In no event does SG assume any responsibility or liability whatsoever for any User Material, and you agree to waive any legal or equitable rights or remedies you may have against SG with respect to such User Material. You can help us tremendously by notifying us of any inappropriate User Material you find by emailing Ascharyj@mmmlaw.com (subject line: "Streaming Global, Inc - Inappropriate User Material").
8.0 Links to Other Websites. This website may contain links to other independent third-party websites. Such websites are not under SG’s control, and SG is not responsible for and does not endorse the content of such websites, including any information or materials contained on them. You will need to make your own independent judgment regarding your interaction with these websites.
9.0 Compliance with Laws. SG shall comply with all laws and governmental regulations applicable to the Services.
10.0 Modification of Services, Calculation of fees, Terms of Service. A “Modification” means a modification or change by SG to (i) the features, functionality and other aspects of a Service, or (ii) the basis for calculating fees and other charges with respect to a particular Service, as opposed to altering the actual Unit Price, as set forth in the Transaction Document for such Service. SG reserves the right to effect a Modification at any time. SG further reserves the right to amend these Terms of Service at any time. Any Modification will be as set forth as in section 16 (Integration, Amendment, Severability, and Electronic Communications). Notwithstanding anything in this section to the contrary, if SG modifies a Service, and, as a result of such Modification, the Service maintains at least reasonably equivalent functionality, then such Modification will not require prior written notice to Customer and will become effective immediately. In the event that SG terminates a Service pursuant to Section 11 (Indemnity), such termination will not be considered a Modification and Customer will be responsible for all Fees for such Service incurred through the date of termination, without liability for further fees or charges for such Service.
11.0 Indemnity. You agree that you will be responsible for your use of the Website, and you agree to defend, indemnify, and hold harmless SG and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the "SG parties") from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Website; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
12.0 Disclaimers; Limitation of Liabilities. WHILE WE DO OUR BEST TO PROVIDE THE OPTIMAL PERFORMANCE OF THE SERVICES, YOU AGREE THAT USE OF THE SERVICES ISAT YOUR OWN RISK. THE WEBSITE, AND ANY OTHER RELATED SERVICES OR PRODUCTS ARE PROVIDED "AS IS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SG DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY,SECURITY, COMPATIBILITY OR NON-INFRINGEMENT; OR THAT THE SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, ERROR FREE, OR RELIABLE.IN NO EVENT SHALL SG OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SUPPLIERS(INCLUDING DISTRIBUTORS AND CONTENT PROGRAMMERS) (COLLECTIVELY, THE "SG PARTIES"), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL,SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE SERVICES (INCLUDING ANY INFORMATION, PRODUCTS, OR SERVICES ADVERTISED IN, OBTAINED ON, OR PROVIDED THROUGH ANY ACCESS POINT OR COMPATIBLE DEVICE), WHETHER BASED IN CONTRACT,TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE SG PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BYYOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TOUSE OF THE SERVICES OR $50 (WHICHEVER IS LESS).YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE SG PARTIES FROM AND AGAINST ANY ANDALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS'FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR USE OF THE SERVICES (INCLUDING YOUR USE OF THE CONTENT). SG RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
13.0 Disclaimer of Warranties. ANY PRODUCTS, DOCUMENTATION, BUSINESS MODELS OR OTHER MATERIALS ARE PROVIDED BY SG “AS IS” AND WITHOUT ANY WARRANTY, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO PERFORMANCE, ACCURACY, OR FREEDOM FROM ERROR. SG MAKES NO EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO REPRESENTATIVE WITH RESPECT TO THE PRODUCTS, ANY SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.
14.0 Notice. Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be given by facsimile or other means of electronic communication or by delivery as hereafter provided. Any such notice or other communication, if sent by facsimile or other means of electronic communication, shall be deemed to have been received on the business day following the sending, or, if delivered by hand or via overnight courier, shall be deemed to have been received at the time it is delivered to the applicable address noted below either to the individual designated below or to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address shall also be governed by this Section. Notices and other communications shall be addressed as follows:
(a)
Streaming Global, Inc.
6 South Main Street
Alpharetta, Georgia 30009
Attention: CEO
with copies (which shall not constitute notice) to:
Morris,Manning & Martin, LLP
1600 Atlanta Financial Center
3343 Peachtree Road, NE
Atlanta, Georgia 30326
Attention: Alexander M. Scharyj
Email: Ascharyj@mmmlaw.com
Facsimile:(404) 365-9532
15.0 Governing Law. This Agreement will be governed by the laws of the State of Delaware without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Streaming Global agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Delaware, USA for the purpose of litigating all such disputes.
16.0 Integration, Amendment, Severability, and Electronic Communications. Please note that these Terms, including SG's Privacy Policy which is incorporated in these Terms and any end user license agreement that might accompany the applicable Service, constitute the entire legal agreement between you and SG and govern your use of the Services (including your use of the Content) (but excludes any services, if any, that SG may provide to you under a separate signed written agreement), and completely replaces any prior agreements between you and SG in relation to the Services. These Terms operate to the fullest extent permissible by law. If any provision of these Terms is held to be unlawful, void, or unenforceable, you and we agree that the provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. From time to time, we may communicate with you about the Services and these Terms electronically (e.g., emails to your registered email address, notices on the SG Site and other Access Points). You consent to receive electronic communications from SG and further agree that any notices, agreements, disclosures, and other communications that we send to you electronically will satisfy any applicable legal notification requirements. We recommend that you keep a copy of any electronic communications we send to you for your records. SG reserves the right to make modifications to these Terms at any time. Revised versions of these Terms will be posted to this Website. Unless otherwise specified, any modifications to theTerms will take effect the day they are posted to this Website. If you do not agree with the revised Terms, your sole and exclusive remedy will be to discontinue your use of the website or services.
17.0 Entire Agreement. These Terms of Service and the OperativeDocuments constitute the entire agreement among the parties with respect to the subject matter hereof and no party shall be liable or bound to any other party in any manner by any warranties, representations, covenants or otherwise, except as specifically set forth in these Terms of Service and the OperativeDocuments.
18.0 Conflicting Terms. If the terms of these Terms of Service and the Operative Documents conflict in any manner, then the controlling priority of the agreements will be in the following order: the Transaction Document, any Service Level Agreements, these Terms of Service, and then the Acceptable Use Policy.
19.0 Force Majeure. Neither party is responsible for any failure to perform its obligations under these Terms of Service or the Operative Documents if such party is actually prevented from or delayed in performing (the “Prevented Party”) those obligations by an event of force majeure. In any such instance, the Prevented Party must immediately notify the other party giving full particulars of the event of force majeure and the reasons that such event prevents or delays that party from performing its obligations. The Prevented Party must then use commercially reasonable efforts to mitigate the effect of the event of force majeure upon its performance of its obligations. Upon the completion or mitigation of the event of force majeure, the Prevented Party must recommence its performance as soon as reasonably practicable. As used herein, “an event of force majeure” means an event or circumstance that is beyond the control of either party, occurs without the fault or negligence of the Prevented Party, and, through the exercise of reasonable diligence, the Prevented Party was unable to prevent such event or circumstance, including, but not limited to: (i) riot, war, rebellion, revolution, acts of terrorism, acts of piracy, military insurrection, usurpation of governmental power, or other armed conflict; (ii) contamination by radiation, nuclear fuel or waste, or other materials that create significant risk to human life; (iii)earthquake, flood, fire, tsunami, tornado or other physical natural disaster, but excluding general weather conditions, regardless of severity; (iv) strikes or industrial dispute; (v) epidemics or pandemics.
20.0 Titles & Subtitles. The titles and subtitles used in these Terms of Service are used for convenience only and are not to be considered in construing or interpreting any of the provisions contained herein.
21.0 Links to Other Websites. This website may contain links to other independent third-party websites. Such websites are not under SG’s control, and SG is not responsible for and does not endorse the content of such websites, including any information or materials contained on them. You will need to make your own independent judgment regarding your interaction with these websites.
22.0 Survival. The provisions regarding preservation and ownership of intellectual property rights, confidential information, limitations of liability, indemnification, payments owed as of termination or expiration (including the accrual of interest on delinquent amounts), and Sections 5 (Licenses and Proprietary) through 24 (Attorneys’ Fees) will survive the expiration or termination of these Terms of Service.
23.0 Relationship to Parties. Nothing in these Terms of Service or the Operative Documents is intended to, nor shall it be construed to, create any agency, partnership, or joint venture relationship between the parties.
24.0 Attorneys’ Fees. If, in any action at law or in equity (including arbitration), it is necessary to enforce or interpret any of the terms of these Terms of Service, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements, in addition to any other relief that such party may be entitled.