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Terms of Service

 

SERVICES.

A. AmpLive, Inc. (“we,” “us, “our,” or “AmpLive”) provides you with its leading proprietary distribution platform for live streaming content (collectively, “Services”) and as further described in the AmpLive Order Form (“Order Form”). Your use of the Services shall be subject to the Order Form and these terms and conditions (“Standard Terms”). The Order Form and Standard Terms are collectively referred hereto as “Agreement.”

B. In the Agreement, (a) “you” and “your” mean the entity signing the Order Form, electronically accepting the Agreement, and any of your Affiliates that execute an Order Form for the Services, (b) “Affiliate” means, with respect to an entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, (c) “Authorized Users” means your agents, representatives, contractors, and any person or entity acting or apparently acting on your behalf, and your Affiliates that use the Services without executing their own separate Order Form, and (d) “AmpLive Entity” means AmpLive and its Affiliates, and its and their officers, directors, consultants, contractors, agents, attorneys, employees, vendors, licensors, and third-party service providers.

C. Terms used but not defined herein have the meanings given to such terms in any Order Form. Terms used in an Order Form, but not defined therein, have the meanings given to such terms in these Standard Terms.  All definitions apply both to their singular and plural forms, as the context may require.

 

Additionally, your use of the Services shall be deemed acceptance of this Agreement.

 

  1. FEES, CHARGES AND PAYMENT.

A. You will pay us for all fees and charges in connection with your use of the Services as set forth in the Order Form.  We will either bill your method of payment such as a credit card, charge card, or bank account (“Payment Method”) for all such charges and fees, or if we bill you on an invoice basis, we will submit an invoice to you at the email or mailing address on the Order Form. You will pay all charges in full within 14 days of receipt.

B. We will bill your Payment Method, or invoice you monthly in advance (unless otherwise provided by AmpLive). All payments of the Annual Fees, Renewal Payment, Overage Fee and other fees are non-refundable. Fees and charges listed in the Order Form do not include any applicable sales, use, value-added, withholding, excise, or any other taxes or government charges, which are payable by you and are in addition to any amounts due us hereunder.

C. After one (1) year following the Commencement Date (defined in the Order Form) and upon prior written notice, we may increase the Annual Fee for each4 period (i.e., one year each) equal to the last Annual Fee plus all accrued Overages (e.g., annual views in excess to the Annual View Cap) during the previous one year period (“Renewal Payment”). The Annual View Cap for each extension period will be equal to the total Views accrued from the previous year.

D. Any disputes about charges to your account(s) must be submitted to us in writing within 30 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge. If we are unable to receive any undisputed payment from your Payment Method successfully, or if we do not otherwise receive timely payment, past due invoices will bear interest at the rate of one percent (1.5%) per month or the maximum amount permitted under applicable law, whichever is greater. You will pay all reasonable expenses (including attorneys’ fees) incurred by us in collecting such charges, and in addition to other rights, we may terminate the Agreement, or suspend performance of the Services, in whole or part.

 

  1. TERM, SERVICE SUSPENSION & TERMINATION.  

 A. We will provide you the Services beginning on the Commencement Date for the time period set forth in the Order Form (“Initial Term”). The Agreement will automatically renew (“Renewal Term”) unless you or we provide written notice at least 60 days prior to the expiration of the Initial Term or Renewal Term, as applicable. (Initial Term and Renewal Term will be referred to collectively as the “Term”.)

B. Subject to applicable laws, AmpLive may temporarily suspend or restrict your use of the Services, if you do not pay an invoice (subject to a reasonable dispute made by you as provided above) within fourteen (14) days after receiving notice from AmpLive that payment is overdue.

C. Notwithstanding the foregoing, (i) if either party is material breach of the Agreement, which is not cured within thirty (30) days after written notice thereof, in addition to other rights, the non-breaching party may terminate this Agreement. If AmpLive terminates this Agreement for material breach, we will declare all amounts to be paid by you during the remaining term hereof immediately due and payable, without relieving you of your obligations under this Agreement. You will reimburse us for all costs and expenses, including legal fees incurred (if any) in connection with the exercise of our rights under this Agreement.  If you terminate this Agreement for our material breach, then AmpLive will provide a pro-rata refund for all Services paid in advance that were not used.  Upon the termination of this Agreement, you will immediately cease from using (and no longer have the right to use) the Services and AmpLive trademarks.

D. Sections 3(C) & (D), 6-11 and 15 & 16, and any covenant and provision herein which, by their terms or nature, extend beyond the expiration or termination of the Agreement, will survive such expiration or termination.

 

  1. LIMITED WARRANTY.

A. You acknowledge and agree that AmpLive will not be liable for any loss or damage arising out of or resulting from AmpLive’s provision of the Services under this Agreement, or any use of the Service by you and your Affiliates; and you hereby release AmpLive to the fullest extent from any such liability, loss, damage or claim. THE SERVICE IS PROVIDED BY AMPLIVE ON AN “AS IS” BASIS. AmpLive does not warrant that the Services will function in any environment.

 B. You acknowledge that (a) the Services have not been prepared to meet any specific requirements of any party, including any of your requirements; and (b) it is therefore your responsibility to ensure that the Service meets your requirements unless otherwise agreed to in writing by the parties. To the extent permitted by law, no express or implied warranty, term, condition or undertaking is given or assumed by AmpLive, including any implied warranty of merchantability or fitness for a particular purpose.

 

  1. RESTRICTIVE USE.

You will not, or permit anyone to copy, resell, trade, sublicense, create derivative works, reverse engineer, repackage or modify the Services and all related intellectual property in any manner.  You shall not remove, alter or otherwise modify any copyright, trademark, or other notices of the proprietary interest contained in the Services.

 

  1. PROPRIETARY RIGHTS.

AmpLive owns all right, title and interest in and to the Services and Service Data (defined below), including without limitation to all related updates, upgrades, versions and improvements made by AmpLive to the Services and any part thereof, and reserves all rights and licenses therein not expressly granted to you under this Agreement.  Any feedback, improvements, suggestions or any corrections provided by you, Authorized Users and/or your Affiliates (“Feedback”) shall be owned by AmpLive, and AmpLive will own all intellectual property rights in connection with the Feedback.  This Agreement does not grant any ownership rights to you, Affiliates and Authorized Users, and gives you only a limited license to use the Services during the Term of the Agreement.

 

You own all right, title and interest in and to your content, programs, productions, and all other technology and information provided by you in connection with your use of the Services (“Your Content”).  You reserve all rights and licenses in and to Your Content, and this Agreement does not grant any ownership rights to AmpLive and its Affiliates in and to Your Content.  You grant to AmpLive a limited license to use Your Content solely in connection with the Services during the Term of the Agreement.

      7. SERVICE DATA & PRIVACY.

A. You agree and acknowledge that AmpLive may collect, retain and use data and information from your end users (“Viewers”) in connection with the use of the Service, including but not limited to information provided by you (such as site demographics and contact and billing information) and interactions by Viewers with the Service and your content (such as unique user identifiers, device and network information, usage data, interaction with advertisements, applications used, and conversion information) (collectively, “Service Data”). You agree that as between AmpLive and yourself, AmpLive is the sole owner of the Service Data, and that AmpLive may use and share such data as AmpLive sees fit, including without limitation for the purposes of providing and analyzing the Service and delivering targeted advertising. Without limiting the foregoing, you understand and agree that AmpLive may share Service Data with third parties, such as third-party service providers (including tracking, attribution, verification, reporting, targeting, and analytics providers) and other business partners, solely in connection with its operation of the Service in accordance with AmpLive’s privacy policy. AmpLive may also anonymize Service Data and may aggregate it with data and information collected from other websites and applications within AmpLive’s network.

B. Notwithstanding anything contrary under this Agreement, AmpLive grants to you a perpetual non-exclusive revocable license to use the Service Data solely for internal business purposes. You also acknowledge and agree that you shall not copy, reproduce, alter, modify, change, broadcast, publish, distribute, transmit, transfer, disseminate, sell or offer for sale the Service Data in any manner, at any time anywhere in the world except as expressly authorized in writing by AmpLive. Nothing herein shall be construed as a grant or assignment to you or any third party of any right, title or interest in any Service Data owned by AmpLive, including, without limitation, any of its trademarks or service marks.

C. You agree to (i) provide all necessary notices and disclosures, and obtain all necessary consents from Viewers regarding their interaction with the Service, and the collection and use of the Viewers’ information by AmpLive; and (ii) otherwise fully comply with all applicable laws, rules and regulations and any self-regulatory guidelines in connection therewith. Without limiting the forgoing, you shall fully comply with a comprehensive privacy policy that accurately identifies the nature and scope of the collection and use of end users’ information gathered by you and AmpLive.

 

  1. REPRESENTATION.You represent, warrant, and covenant that you:  (i) have the right, authority, and any required permission and consent to enter into the Agreement, (ii) will solely obtain and maintain all costs and expenses associated with the production and distribution of Your Content; (iii) will obtain and secure all appropriate licenses, rights and clearances of Your Content in connection with use of the Services; and (iv) will comply with all laws and regulations related to your use of the Service.

 

  1. INDEMNIFICATION.

A. AmpLive agrees to indemnify, hold harmless and defend you and your Affiliates from all claims, defense costs (including reasonable attorneys’ fees and expenses), agreed settlements and finally awarded judgments payable to a third party arising out of the alleged infringement or misappropriation of any copyright, patent, trademark or trade secret with respect to your authorized use of the Service and the AmpLive trademark (“AmpLive Claim”). Notwithstanding any other provision in the Agreement, AmpLive has no liability or indemnification obligation under the Agreement with respect to any AmpLive Claim to the extent it arises out of or in connection with:  (i) the modification or alteration of the Services (unless pre-approved by AmpLive); (ii) any technology, software, content or other materials provided by you, your Affiliate, an Authorized User, or a third party; and/or (iii) the combination or use of any Services with any third party technology, software, services, products.  If the use of any Service is enjoined or threatened to be enjoined due to an alleged infringement, AmpLive will, at its discretion and expense, (a) procure the right for you to continue using such Service, (b) modify or replace the affected items with functionally equivalent or better items, or (c) refund the amount paid by you in connection with the affected Services.

B. You agree to indemnify, hold harmless and defend AmpLive and its Affiliates from all third party claims, defense costs (including reasonable attorneys’ fees), judgments, settlements and other expenses arising out of any breach or violation of your representations, warranties or obligations under this Agreement; and/or (ii) any violation by you, and/or your Affiliates of any law or regulation applicable to your use of the Services.

  1. WARRANY DISCLAIMER.  

EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, WE AND YOU DISCLAIM ON BEHALF OF EACH OF OURSELVES (AND IN OUR CASE, THE AMPLIVE ENTITIES) ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

 

  1. LIMITATION OF LIABILITY.

EXCEPT FOR LIABILITY ARISING OUT OF EACH OF YOUR OR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF YOU, US AND/OR OUR LICENSORS IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE FEES AND CHARGES PAID OR PAYABLE BY YOU HEREUNDER. EXCEPT FOR LIABILITY ARISING OUT OF EACH OF YOUR OR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, ABOVE, IN NO EVENT WILL YOU, WE AND/OR OUR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF WE OR YOUR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE SERVICES; (iii) STATEMENTS, CONDUCT, OR TECHNOLOGY OF ANY THIRD PARTY IN CONNECTION WITH THE SERVICES.

 

  1. NOTICES.We may provide you with notices, including without limitation, regarding changes to the Services by email, facsimile, or regular mail.  It is your responsibility to ensure that your contact information (e.g., your email and address) is current and correct, and you will promptly notify us in writing of any changes to such information.

  All legal notices to us shall be emailed to legal@amp.live with a courtesy copy sent   via recognized overnight courier or certified mail to:
AmpLive, Inc., 1250 Addison Street, Suite 208, Berkeley, CA 94702

  1. BRANDING & ATTRIBUTION.

 A. You agree to display attribution on web player, on your website or webpage of your event, and all marketing and advertising materials of your event, as provided by AmpLive in the form of a “Powered by AMPLIVE” logo. AmpLive grants to you a limited, freely revocable, nontransferable, nonsublicenseable, nonexclusive license during the Term to display AmpLive trademarks in accordance with this Agreement.

B. In the course of promoting, marketing, or demonstrating the Services you are using, AmpLive may produce and distribute incidental depictions, including screenshots, video, or other content from Your Content, and may use your company name and logos, and Your Content name and artwork on AmpLive’s website and marketing materials. You hereby grant AmpLive all necessary rights for these purposes.

 

  1. CHOICE OF LAW.The Agreement and the relationship between you and us is governed by the laws of the State of California without regard to its conflict/choice of law principles. You and we agree to submit to the personal and exclusive jurisdiction of the courts located in Los Angeles County, California.

 

  1. MISCELLANEOUS.The Agreement constitutes the entire agreement and understanding between you and us, governs your use of the Services, and supersedes any prior or contemporaneous representations, claims, communications and agreements in all forms of media, written or oral, between you and us regarding the Services.  No terms or conditions other than those set forth in the Agreement will be binding on us unless expressly agreed to in writing by us. If there is any conflict between the Order Form and these Standard Terms, the Order Form will control. Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to waive such compliance may waive any term(s) and/or condition(s) of the Agreement.  No waiver by you or us of a breach of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable for any reason, you and we agree that the court should endeavor to give such invalid or unenforceable provision similar economic effect, and the other provisions of the Agreement remain in full force and effect. You may not assign, sublicense or transfer (by operation of law or otherwise) any right or duty under the Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 14 will be void and of no force or effect. We and our subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time the Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity. Neither you nor we will have any liability under the Agreement by reason of any failure or delay in the performance of your or our obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond your or our reasonable control. Headings used in the Agreement are for reference purposes only. You and we are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us.

 

 

Version:  March 22, 2017