CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.
THESE TERMS AND CONDITIONS ARE ACCEPTED AND CONSTITUTE A BINDING AGREEMENT UPON CLICKING THE “AGREE” BUTTON OR OTHER COMPARABLE OPTION (“ASSENT”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS, DO NOT CLICK “AGREE” AND YOU ARE NOT GRANTED A LICENSE IN ACCORDANCE WITH THIS AGREEMENT, AND ANY INSTALLATION, ACCESS, COPYING, OR OTHER USE IS UNAUTHORIZED AND PROHIBITED.
This Terms of Service and End User License Agreement (“Agreement”) is made and entered into on the date the Assent was made (“Effective Date”) by and between StreamKat, LLC, a Nevada limited liability company (“StreamKat”) and you as the natural person that indicates the Assent (“User”) and you represent that you are at least 18 years of age and of legal age within your jurisdiction and able to form a binding agreement with StreamKat.
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, StreamKat and User (each a “Party” and together the “Parties”) hereby agree as follows:
1. Definitions and Interpretations
1.1.Certain terms used herein shall have the following meanings:
1.1.1. “Claim” shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.
1.1.2. “Content” shall mean all material, information, documents, matter, text, Software, data, graphics, drawings, blue-prints, schematics, sketches,
computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the
foregoing and all results and/or derivations of the expression of the foregoing (all of the foregoing whether in a format now known or hereinafter
1.1.3. “Develop” shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person’s efforts in any manner whatsoever
and through any means whether now known or hereafter devised.
1.1.4. “Disclose” shall mean disseminate, transmit, publish, post, upload, initiate, distribute, transfer, make available or otherwise convey.
1.1.5. “Enabled Content” shall mean streaming and archived data, information, text, graphics, images and other Content resulting from and enabled by the
execution of the Licensed Software and accessible by User.
1.1.6. “Governmental Authority” shall mean any federal, state, county, judicial, arbitral, municipal or other governmental or sovereign entity, as well as
all subdivisions, agencies and authorities therein.
1.1.7. “Law” shall mean any constitution, statute, code, rule, or regulation of any federal, state, county, municipal or other sovereign entity, as
promulgated and amended from time to time.
1.1.8. “Licensed Property” shall mean the Licensed Software and the Enabled Content.
1.1.9. “Licensed Software” shall mean the website, mobile application and/or other Software made generally and commercially available by StreamKat and
licensed pursuant to this Agreement enabling certain functions for: (a) viewing certain entertainment venue Content through streaming, archiving and other
functions and solutions; and (b) promoting and marketing certain venues and entertainment providers.
1.1.10. “Losses” shall mean any and all damages, liabilities, costs, charges, expenses, expenditures, fees (including, without limitation, attorneys’,
accountants’, experts’, investigators’, witnesses’ and professionals’ fees) and other losses of whatsoever nature.
1.1.11. “Person” shall mean any natural person, corporation, general partnership, limited partnership, limited liability partnership, limited liability
company, trust, association, organization or other entity of whatsoever nature or character.
1.1.12. “Representatives” shall mean all shareholders, directors, officers, strategic advisors, employees, agents, representatives, attorneys, and
accountants whether holding equity in, retained by, employed by, commissioned by or otherwise controlled by a subject Person.
1.1.13. “User Content” shall mean any Content Disclosed by User, including, without limitation, all Content entered by User using the Licensed Software for
inclusion in the Enabled Content.
1.2. Terms defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural
or past tense, shall retain the general meaning if used in the singular or present tense.
1.3. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
The term of this Agreement shall commence on the Effective Date and shall remain in effect until the occurrence of a Termination Event (the “Term”).
3. Grant of Limited License
3.1. Subject to the terms and conditions of this Agreement, StreamKat hereby grants to User a personal, limited, revocable, non-exclusive,
non-transferable, non-assignable license to: (a) access and execute the executable code of the Licensed Software on and through one (1) electronic device
owned by the User utilizing the User’s account; and (b) view the Enabled Content only for User’s personal use and in accordance with all Laws applicable to
User. This foregoing limited license applies to any future versions, improvements, developments, updates and upgrades to the Licensed Software that
StreamKat may make generally and commercially available to the User, unless such versions, improvements, developments, updates and/or upgrades are
accompanied by separate terms.
3.2. User grants StreamKat a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable, assignable license to use,
modify, translate, reformat, create derivative works from, store, distribute and display any User Content, including, without limitation, in and through
the Licensed Property.
4.1.The Licensed Software is part of a streaming, archiving, marketing and promotion system utilized by StreamKat and related, affiliated, and/or
contracted Persons to allow Users to access and view certain Content. Any and all activities filmed, broadcast, offered, or available at third Person
venues are subject to the terms and conditions of such third Persons. StreamKat does not control the business operations or policies of such third Person
venues and StreamKat shall have no responsibility or liability with respect to such activities. User is solely responsible for reading and understanding a
third Person’s terms and conditions.
4.2.Subject to the terms and conditions of this Agreement, StreamKat shall use StreamKat’s reasonable efforts to provide access to certain Licensed
Software through the User’s account; provided, however, that access to and execution of the executable code of the Licensed Software may, in StreamKat’s
sole and absolute discretion, be denied at: (i) certain times reasonably designated by StreamKat for updates, back-ups and maintenance of the Licensed
Software and (ii) other times unexpected or outside the reasonable control of StreamKat, including, without limitation, network outages, technical errors,
and third Person acts or omissions that prohibit, hinder or otherwise preclude access to and execution of the Licensed Software.
User shall pay StreamKat by credit card, electronic funds transfer, or other payment method designated by StreamKat all amounts designated for the
respective service in advance on or before the respective due date. In addition to all other rights and remedies available to StreamKat at law and equity,
in the event User fails to pay StreamKat the amounts when due, StreamKat shall have the right, in StreamKat’s sole and absolute discretion, to immediately
and with or without notice, terminate this Agreement and/or suspend or restrict access and all other licenses to the Licensed Property.
6. User Covenants/Representations/Warranties
User hereby covenants, represents and warrants as of the Effective Date and throughout the Term and where applicable, after the Term, the following:
6.1. User: (a) has the authority to enter into this Agreement, (b) is voluntarily entering into this Agreement, (c) is at least 18 years of age and is of
legal age within User’s jurisdiction, and (d) shall comply with the terms and conditions of this Agreement;
6.2. Neither the execution and delivery of this Agreement or any document, agreement or instrument required by this Agreement, nor the consummation of the
transactions contemplated herein or therein shall constitute a violation of, or default under, or conflict with, any term or provision of any commitment,
indenture, lease or other contract to which User is a party or by which User is bound;
6.3. User shall comply with all applicable Laws, including, without limitation, privacy, security and defamatory Laws;
6.5. User shall: (a) be responsible for all use of User’s account, including, without limitation, all use of the User account log-in information; (b)
maintain the confidentiality of User’s account name and password; (c) take reasonable steps to prevent unauthorized use of User’s account and the Licensed
Property; and (d) immediately notify StreamKat in writing of any disclosure and/or unauthorized use of such account name and password;
6.6. User is the natural person associated with the User account, and to the best of User’s knowledge, all information or Content Disclosed by User through
the Licensed Software is true and correct;
6.7. User owns or has the right to Disclose all the User Content and the User Content has not, nor shall not, infringe or misappropriate any third Person’s
intellectual property rights or otherwise violate any Laws, including, without limitation, any privacy, security or defamatory Laws;
6.8. User shall use the Licensed Property in accordance with applicable Laws, including, without limitation, that User shall not use, export, re-export,
import, or transfer the Licensed Property except as authorized by applicable United States and other Law, including, without limitation, that the Licensed
Software may not be exported or re-exported: (a) into any United States embargoed countries or (b) to anyone on the U.S Treasury Department’s list of
Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List and User covenants, represents and warrants that
User is not located in any such country or on any such list;
6.9. User shall not Disclose any Content that User does not have a right to Disclose under any Law or under any contractual or fiduciary relationships or
any Content that infringes the proprietary rights of any Person;
6.10. To the extent User provides suggestions, comments, or other feedback to StreamKat (“Feedback”), such Feedback is and shall be given entirely
voluntarily, shall not create any confidentiality or other obligation on StreamKat, and StreamKat shall be free to use, disclose, reproduce, license,
distribute, and otherwise exploit the Feedback as it sees fit, entirely without payment or other obligation or restriction of any kind.
6.11. User shall be solely responsible for all User Content and StreamKat is not responsible to User or any third party for any User Content;
6.12. As between the Parties, StreamKat owns all right, title and interest in and to the Licensed Property and to the extent User is deemed an owner of any
right, title, or interest in and to the Licensed Property or otherwise has a bona fide claim of ownership (whether arising from this Agreement or
otherwise), User hereby assigns any such right, title or interest to StreamKat and shall execute all documents and undertake all actions necessary to
effect the clarification of ownership of all such right, title or interest in and to StreamKat;
6.13. User shall in no way represent that User has any right, title or interest in or to the Licensed Property;
6.14. User shall not view, copy, download, or print the Enabled Content for any purpose outside the limited scope set forth in Section 3.1 without the
express written consent of StreamKat, such consent granted or denied in StreamKat’s sole and absolute discretion;
6.15. User shall not charge a fee, or offer for free, to any Person to: (a) execute the Licensed Software or (b) view, access or otherwise use the Enabled
6.16. User shall not impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature, nor enable any
Person to do so, on the Licensed Property or any portion thereof;
6.17. User shall not Disclose any Content by any method that may damage the operation of the Licensed Property or any Person’s computer, electronic device
or other property, including, without limitation, any virus, bug, Trojan horse, worm, time bomb, or cancelbot;
6.18. User shall not interfere with or disrupt or attempt to interfere with or disrupt the provision of the Licensed Property to User or any third Person;
6.19. User shall not copy, make derivative works, modify, disassemble, decompile, or reverse engineer the Licensed Property, including, without limitation:
(a) modify or cause to be modified any files that are part of the Licensed Software; or (b) facilitate, create or maintain any unauthorized connection to
the Licensed Software;
6.20. User shall not impersonate any Person or falsely state or otherwise misrepresent User’s identity or affiliation with any Person or to disguise or
otherwise misrepresent the origin of any User Content;
6.21. User shall not Disclose any Content that is unlawful, harmful, threatening, harassing, defamatory, vulgar, invasive of another’s privacy, hateful or
otherwise objectionable; and
6.22. User shall not collect or store personal data about other users.
7. Retained Rights
7.1.StreamKat may, in StreamKat’s sole and absolute discretion, modify any and all of the Licensed Property at any time without notice.
7.2. All licenses not expressly granted to User pursuant to this Agreement are reserved by StreamKat.
7.3. StreamKat retains the right to restrict, suspend, and/or terminate User’s use of any portion of the Licensed Property, including without
limitation, the Licensed Software or Enabled Content, that is the subject of a prohibition of use by any Law, or that is determined to infringe a third
Person’s intellectual property.
7.4. StreamKat retains the right to remove any Content, including, without limitation, User Content in the event of an actual or suspected breach of this
Agreement (in StreamKat’s sole and absolute discretion).
8. Equitable Relief
Notwithstanding Section 8, User covenants, represents and warrants that any violation of Sections 3 or 5 by User shall cause irreparable injury to StreamKat and shall entitle StreamKat to extraordinary and equitable relief by a court, including, but not limited to, temporary restraining orders and preliminary and permanent injunctions, without the necessity of posting bond or security. The opinions, findings, determinations and orders of any court with respect to permanent equitable relief granted consistent with this Section 7 shall have binding effect upon any arbitration and shall otherwise have res judicata and collateral estoppel effect upon any arbitration; provided, however, that the arbitrator shall give any court opinion, finding, determination or order granting temporary or preliminary equitable relief persuasive juridical authority.
9. Dispute Resolution
SUBJECT TO SECTION 7, THE PARTIES SHALL ENDEAVOR TO FIRST SETTLE ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY BREACH OF THIS AGREEMENT) BY MEDIATION CONDUCTED IN CLARK COUNTY, NEVADA. IF ANY CLAIM IS NOT OTHERWISE RESOLVED THROUGH DIRECT DISCUSSIONS OR MEDIATION, SUCH CLAIM(S) SHALL BE RESOLVED BY ARBITRATION CONDUCTED IN CLARK COUNTY, NEVADA IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF NEVADA REVISED STATUTES, EXCEPT THAT THE ARBITRATOR SHALL BE AN EXPERIENCED ARBITRATOR LICENSED TO PRACTICE LAW IN NEVADA. EACH PARTY COVENANTS, REPRESENTS AND WARRANTS THAT SUCH PARTY HEREBY WAIVES SIGNIFICANT RIGHTS ALLOWED PURSUANT TO NEVADA LAW BY AGREEING TO SUCH ARBITRATION PROVISIONS.
10. Disclaimer of All Warranties and Representations
THE SERVICES AND LICENSED PROPERTY ARE PROVIDED “AS IS.” STREAMKAT MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED AND DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, LICENSED PROPERTY, OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (some jurisdictions do not allow the exclusion of implied warranties, so the exclusion of implied warranties may not apply to the User) OR CONDITIONS OF TITLE, NON‑INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT STREAMKAT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
11. Limitations on Liability
STREAMKAT AND STREAMKAT’S REPRESENTATIVES SHALL NOT BE LIABLE TO USER (OR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO USER’S RIGHT, TITLE AND INTEREST) WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER LEGAL THEORY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS, LOSS OR CORRUPTION OF CONTENT, INTERRUPTION OR COMPUTER FAILURE ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND IN NO EVENT SHALL STREAMKAT AND STREAMKAT’S REPRESENTATIVES BE LIABLE TO USER (OR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO USER’S RIGHT, TITLE AND INTEREST) IN OR FOR AN AMOUNT THAT EXCEEDS THE AMOUNTS, IF ANY, RECEIVED BY STREAMKAT FROM USER WITHIN THE ONE (1) MONTH PRIOR TO USER’S CLAIM OR THE TERMINATION OF THIS AGREEMENT, WHICHEVER OCCURS EARLIER.
12. Termination Event
12.1. Subject to User’s compliance with the terms of this Agreement, including, without limitation, paying all amounts due or payable, as applicable, User
may terminate this Agreement at any time by requesting in writing that StreamKat cancel User’s account.
12.2. In addition to any and all other remedies available to StreamKat at law or equity, StreamKat shall have the right to immediately terminate this
Agreement, with or without notice, upon the occurrence of any of the following events:
12.2.1. On the date identified in a five (5) day prior notice sent by StreamKat to User terminating the Agreement and/or the grant of license to User;
12.2.2. User commits an act of fraud against StreamKat, regardless of whether such act of fraud is a material breach; or
12.2.3. User breaches any provision relating to, associated with, or arising from User’s covenants, representations and warranties or User engages in any
of the prohibited uses identified in this Agreement.
12.3. Upon termination, all licenses granted to User shall immediately terminate and User shall immediately cease all use of the Licensed Property.
12.4. StreamKat reserves the right to cancel user accounts that have been inactive for more than three (3) months without any further obligation.
Notwithstanding any other provision of this Agreement, User shall defend, indemnify and hold StreamKat and StreamKat’s Representatives (the “StreamKat Indemnified Parties”) harmless from and against any Losses incurred by any of the StreamKat Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User (except an act or omission that emanates from an infringement by StreamKat of a third Person’s intellectual property), including, without limitation, the misuse of the Licensed Property, alleged breach, or investigation relating to a possible breach, of any legal requirement or of any covenant, representation, warranty or other obligation of User contained in or arising out of this Agreement.
14. Limitations on Assignment
This Agreement, including, without limitation, the license granted pursuant to Section 3.1, is personal to User, and User shall not assign or transfer any of User’s rights or have assumed any of User’s obligations pursuant to this Agreement to and by, respectively, third Persons.
Waiver by StreamKat of performance of any provision of this Agreement shall not be a waiver of, nor prejudice to, StreamKat’s right to require, strict performance of the same or any other provision in the future.
16. Force Majeure
StreamKat shall not be liable for, or be in breach of this Agreement associated with, relating to, resulting from, or arising from any cause beyond StreamKat’s control, including, without limitation, war, insurrection, public enemy, acts of God, terrorist acts, changes in Laws, acts or omissions of Governmental Authorities, labor disputes, strikes, and/or power failures, or any unavailability, delay, or malfunction of any Licensed Property related to the Internet or events or activities of third Persons outside of StreamKat’s control.
StreamKat may provide any notice by posting to StreamKat’s website or by sending electronic mail to the email address User provided, in StreamKat’s sole and absolute discretion, and such notice shall satisfy any legal requirement that communications be in writing.
18. General Provisions
18.1. Unless otherwise specified, all terms and provisions shall be applicable throughout the Term.
18.2. If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such
court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
18.3. This Agreement shall not be amended or modified except by: (a) StreamKat providing notice of such amendment or modification and such amendment or
modification is accepted and incorporated herein by this reference upon Assent or (b) written document signed by both Parties.
18.4. Sections 1 and 5 through 17, inclusive, shall survive any termination of this Agreement.
18.5. Subject to Section 13, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and
18.6. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to conflicts of law principles.
User consents to personal jurisdiction, as well as exclusive venue for any Claim regarding or arising out of this Agreement in the appropriate state or
federal court located in the County of Clark, State of Nevada.
18.7. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No prior or contemporaneous
representations, inducements, promises, or agreements, oral or otherwise, between the Parties with respect to the subject matter of this Agreement shall be
of any force or effect.