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    • Terms of Service

    Last Updated: May 7, 2021
    Welcome, and thank you for your interest in Caffeine Inc. (“Caffeine,” “we,” or “us”) and our website at www.caffeine.tv, along with our related websites, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Caffeine regarding your use of the Service.
    PLEASE READ THE FOLLOWING TERMS CAREFULLY:
    BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING CAFFEINE’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND CAFFEINE’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY CAFFEINE AND BY YOU TO BE BOUND BY THESE TERMS.
    ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND CAFFEINE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 18.)
      1. Caffeine Service Overview. The Service may provide you with a platform to: (a) live webcast to other users of the Service (“Users”) video and audio of yourself, which may or may not be accompanied by additional content (such as an eligible videogame you are playing, linear media you provide, or another User's webcast available on or through the Service) as permitted by Caffeine in its sole discretion (each, a “Broadcast”); (b) view Broadcasts simultaneously with other Users; (c) make written comments to other Users through the functionality on the Service (“Comments”); (d) make Broadcasts that incorporate, respond to, or comment on the Broadcasts of other Users; (e) invite other Users to view your Broadcasts; (f) link your Broadcasts to certain social media platforms integrated with the Service; and (g) potentially earn real money from Caffeine as a result of your Broadcasts. Any User that Broadcasts on the Service, or to social media platforms integrated with the Service, is referred to as a “Broadcaster” under these Terms.
    • Eligibility. We do not intend to offer the Service to children below the age of 13 or to any Users previously suspended or removed from the Service by Caffeine. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13-years old; (b) if you are under 18-years old, you possess the legal consent of your parent or legal guardian to access and use the Service; (c) you have not previously been suspended or removed from the Service; and (d) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. IF YOU ARE UNDER THE AGE OF 13, YOU ARE NOT AUTHORIZED TO USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. If you are using the Service on behalf of an entity, organization, or company, then you represent and warrant to us that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
      1. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@caffeine.tv. We reserve the right, in our sole discretion, to disallow, cancel, remove, or reassign usernames, without liability to you or any third party, and with or without prior notice to you.
    • Licenses
        1. Limited License. Subject to your complete and ongoing compliance with these Terms, Caffeine grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
        2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
    • Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you grant Caffeine an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. Caffeine will have no obligation to identify you as the source of any Feedback.
        1. Ownership; Proprietary Rights; Marks
          1. The Service is owned and operated by Caffeine. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Caffeine are protected by intellectual property and other laws. All Materials included in the Service are the property of Caffeine, its third-party licensors, or the owners of such Materials. Except as expressly authorized by Caffeine, you may not make use of the Materials. Caffeine reserves all rights to its Materials not granted expressly in these Terms. Accordingly, nothing in these Terms or on the Service will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service or any Materials or Trademarks located or displayed on or within the Service.
          2. Marks. The Caffeine trademarks, service marks, and logos (collectively, the “Caffeine Trademarks) used and displayed on the Service (excluding trademarks appearing in content Broadcast on the Service by Users) are Caffeine's registered and/or unregistered trademarks or service marks. Any other product and service names located on the Service (including in User Content Broadcast on the Service) may be trademarks or service marks owned by third parties (collectively with the Caffeine Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Caffeine or the applicable third party, Caffeine's or a third party's products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without Caffeine's prior express written consent. All goodwill generated from the use of any Caffeine Trademark will inure solely to Caffeine's benefit. All goodwill generated from the use of any other Trademark will inure solely to the benefit of the owner of such Trademark.
      • Virtual Items
          1. Virtual Items. Certain features of the Service allow Users to react to favored content by sending virtual gifts (“Gifts”) in order to express approval of the content. However, Broadcasters may not require that anyone react with Gifts as a condition to viewing a Broadcast that is otherwise publicly available on the Service or elsewhere; however, Broadcasters may block other Users from viewing their content for other reasons, such as to prevent abuse. To send Gifts, Users can purchase digital points (“Gold”) in quantities and at prices determined by Caffeine, at its discretion, and use that Gold to purchase Gifts. A User cannot purchase more than $1,000 worth of or Gold in any given day, and we may impose additional limits or modify limits on the amount of Virtual Items (defined below) that you may purchase or hold at any time. Broadcasters that receive Gifts from Users will, at Caffeine’s discretion, receive an amount of virtual digital rewards in the form of an increased reputation rating (“Credits”) from Caffeine that is tied to the value of Gifts received, which value is determined at Caffeine’s discretion. “Gifts,” “Gold” and “Credits” are collectively referred to as “Virtual Items” in these Terms. Users can only obtain Virtual Items in accordance with these Terms and through methods approved by us, which methods Caffeine will determine and update from time to time at its discretion. All non-standard transactions between Users related to Virtual Items are prohibited.
          2. Gold Purchase Terms. The purchase of Gold is a transaction solely between the User and Caffeine. When you purchase Gold on the Service, you will have an opportunity to review and accept the fees that you will be charged. Caffeine may use third-party payment processors to execute such transactions, and all such transactions are subject to the legal terms and privacy policies of our payment processors. You authorize Caffeine and our payment processors to charge all sums for the orders of Gold that you make, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Caffeine may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. All purchases are final and non-refundable. If you request a chargeback from your issuing bank after having authorized a purchase, and we believe in our sole discretion that you have not disputed the transaction in good faith, your account may be terminated with no recourse.
          3. Not Currency. Each of the Virtual Items perform different functions on the Service, and each may be subject to their own terms and conditions, as specified in these Terms or otherwise on the Service. They also have some things in common. In particular, all Virtual Items are not money and do not entitle any person to any payment. While we may use terms like “buy”, “purchase”, or “sell” in reference to some Virtual Items, such uses are merely for convenience and do not mean that Virtual Items have any particular value. When you “send” a Gift, you are sending it to us to display and register your approval of the referenced content or Broadcast. The Service may enable you to react to Broadcasters, other Users, Broadcasts, or User Content using Gifts, but any and all transfers of Virtual Items between Users (including through the transfer of accounts on the Service) are expressly prohibited, including any sale or exchange, whether direct or through an intermediary, such as an auction service. Virtual Items are provided to you for entertainment purposes only, and we grant you a limited, personal, revocable, non-transferable license to use any Virtual Items you obtain or access only on the Service. Virtual Items are not real property, and, as between you and Caffeine, Caffeine owns all right, title, and interest in all Virtual Items on the Service. You may not convert, exchange, or redeem Virtual Items for any virtual or government-issued currency, except through the Broadcaster Program described below or as required by law.
          4. No Liability for Virtual Items. Prices, availability, exchangeability, and transferability of Virtual Items are determined by Caffeine in its sole discretion and are subject to change without prior notice to you. Subject to applicable law and any other written and signed agreement entered into between you and Caffeine in addition to these Terms, you agree that Caffeine has the absolute and unrestricted right to manage, restrict, distribute, control, modify, withdraw, cancel, eliminate, change the prices or methods of exchange of, or reduce or limit the supply of Virtual Items in its sole discretion, and that Caffeine will have no liability to you or to any third party for exercising any such rights. Under no circumstances will Caffeine be liable to you for any damages or claims that may arise from the loss of Virtual Items, regardless of the circumstances. Without limiting anything in this Section, Caffeine’s liability to you for the loss of any Virtual Items, or the use or enjoyment thereof, will under no circumstance exceed the replacement of such Virtual Items, or the provision of alternative Virtual Items.
          5. Eligibility for Broadcaster Program. We wish to motivate users to Broadcast original, creative User Content that is of high quality and interesting for our Users. To motivate Users accordingly, we have created a program for Broadcasters (“Broadcaster Program”) that Broadcasters will automatically be enrolled in. Broadcasters may be eligible to receive compensation in connection with their performance of Broadcasts on the Service. In order to receive any such compensation, a Broadcaster (or media company on behalf of a represented Broadcaster) must accept the terms and conditions set forth in Section 7 (the “Broadcaster Program Terms”). Caffeine is the sole decision-maker as to whether and how Users may be compensated in connection with the Broadcaster Program or otherwise.
          6. Forfeiture and Expiration of Virtual Items. Virtual Items do not have an expiration date, but may be terminated, forfeited, discontinued, or otherwise cease as set forth in these Terms. If Caffeine terminates your account on the Service in accordance with these Terms, your license to all Virtual Items (including Gifts, Gold, and Credits) associated with your account will terminate immediately and all Virtual Items associated with your account will be forfeited, without compensation of any kind to you, subject to any limitations under applicable law. If you fail to access your account for a period of 12 consecutive months, the Credits associated with your account will be gradually reduced in even or uneven increments over the following 12 months until no Credits remain associated with your account. Accessing your account during this reduction year will stop the reduction process but will not reinstate Credits that have been removed.
      • Broadcaster Program Terms
          1. Requesting a Redemption. When a Broadcaster receives Gifts through the Service due to Broadcasts or other eligible activities on the Service as may be determined by Caffeine at its discretion, Credits may be added to the Broadcaster’s account on the Service. You can access your account to review your Credits balance at any time. You may request, through the Service, to redeem your Credits for Gold or U.S. dollars ("Redeem" or a “Redemption”). Caffeine, in its sole discretion, will determine whether you are eligible to Redeem by reviewing information on your account, requirements under applicable law, and your compliance with these Terms.
          2. Eligibility to Redeem. Caffeine may, at its discretion, place restrictions on your ability to Redeem, reject any request you make to Redemption, and determine how much you are eligible to Redeem. For example, Caffeine generally limits a Broadcaster’s ability to Redeem $1,000 or more per day and may deny your Redemption request in excess of that amount. Any Broadcaster requesting to Redeem $1,000 or more worth of Credits in any given day will need to provide information to Caffeine in order for Caffeine to conduct certain checks and verifications on the Broadcaster. This information may include, at Caffeine’s discretion, your bank name and account, the address of your primary residence, your full legal name, a government-issued identification number, tax information (an IRS form W-9 for U.S. taxpayers and an IRS form W-8 BEN for non-U.S. taxpayers), and copies or images of related documents (as well as any of the same information from any media company representing a Broadcaster, as applicable) (“Verification Documentation”). Caffeine reserves the right to decline or cancel any Redemption request for any reason, including in the event that the Verification Documentation appears to be inaccurate, cannot be verified, does not uniquely identify you or, as applicable, the media company representing a Broadcaster, or that a Redemption request would be, as determined by Caffeine at its discretion, inappropriate. For example, Caffeine may deny Redemption requests that involve suspected money laundering or suspicious or fraudulent account activity or payments of $1,000 or more in any given day. Certain age restrictions may also apply to the availability of Redemption opportunities, depending on local laws and the policies of Caffeine’s third-party vendors. Even if you request to Redeem, you will only receive Gold or U.S. dollars, as applicable, in exchange for Credits held in your account if Caffeine determines, at its discretion, that you are eligible to Redeem. You may incur transaction fees in connection with Redemption transactions, and these fees will vary depending on the payment method you choose. Except as otherwise set forth in a written and signed agreement entered into between a Broadcaster and Caffeine, Caffeine may also impose restrictions on Redemption requests, such as requirements regarding: (a) the amount or quality of content that must be provided by a Broadcaster prior to a Redemption; (b) the length of time that the Broadcaster has been active in, or the amount and quality of the Broadcaster's participation in, the Caffeine community prior to a Redemption request; (c) whether the Broadcaster is currently active on the Service; (d) the accumulation of a minimum total reputation score as measured in Credits prior to a Redemption request; (e) a minimum number of Credits that a Broadcaster may Redeem per Redemption; and (f) Broadcaster's compliance with all the provisions of these Terms.
          3. Your Representations, Warranties, and Acknowledgements. You represent and warrant to us that: (a) as a condition to your receipt of any compensation in connection with the Broadcaster Program, you agree to be bound by these Broadcaster Program Terms; (b) you will not use the Service, any Virtual Items, or any Redemption in violation of any applicable laws and regulations (including anti-money laundering laws and trade and economic sanctions laws and regulations); and (c) you will, upon Caffeine’s request, reasonably cooperate with Caffeine and promptly provide Caffeine with any materials reasonably required by Caffeine to enable Caffeine to provide the Service, the Broadcaster Program, and any Redemption and to otherwise fulfill its obligations and responsibilities under these Broadcaster Program Terms and to enable Caffeine to comply with applicable laws. You acknowledge and agree that: (i) Caffeine reserves the right, without prior notice to you, to limit your use of Virtual Items or Redemptions and to limit the size and frequency of any Redemptions; and (ii) Caffeine is neither a money services business, money transmitter, depository institution, bank, nor branch of a depository institution.
          4. Media Companies and Represented Broadcasters. Caffeine is not responsible for compensating any represented Broadcasters directly, notwithstanding any Redemption request made from a represented Broadcaster’s account. The applicable media company representing that Broadcaster is solely responsible for making any Redemption request from the account on the Service that has been setup by that media company on behalf of the represented Broadcaster, and for distributing any U.S. dollars received in connection with such Redemption request to the applicable represented Broadcaster. Such action or inaction is not under Caffeine’s control and Caffeine is not and will not be responsible for any decisions taken or not taken by any media company on behalf of any represented Broadcaster on the Service.
          5. Independent Contractor and Taxes. You agree to report any payments made to you in the United States through the Broadcaster Program to the IRS. If you provided Caffeine with Verification Documentation, then we may also make IRS Form 1099 available to you in connection with your Redemptions. You are solely responsible for paying any taxes that may be owed by you due to any Redemption. While Broadcasters (either individually or through a media company representing a Broadcaster) perform services on the Service, neither the Broadcaster Program nor these Broadcaster Program Terms create, or will be construed as creating, any partnership, joint venture, employer-employee, or agency relationship between Caffeine and you or establish any exclusive arrangement between Caffeine and you. It is the express intention of Caffeine and you that you will perform services on the Service as an independent contractor to Caffeine. Nothing in these Broadcaster Program Terms will in any way be construed to make you an agent, employee, or representative of Caffeine, and you are not authorized to bind us to any liability or obligation or to represent that you have any such authority. You acknowledge and agree that all Redemption payments you receive are payments for the services you provide on the Service and that you are responsible for ensuring that all payments received by you in connection with a Redemption are properly reported to the IRS or other applicable taxing authorities. You are obliged to pay all self-employment and other taxes on such income, and you agree that you will receive no benefits from Caffeine. You agree that if you are reclassified by a state or federal agency or court as Caffeine’s employee, then you will become a reclassified employee and will receive no benefits from Caffeine except those mandated by state or federal law, even if by the terms of Caffeine’s benefit plans or programs of Caffeine in effect at the time of such reclassification, that you would otherwise be eligible for such benefits.
          6. Modifications to Broadcaster Program. Caffeine reserves the right to modify, amend, or cancel the Broadcaster Program, add, remove, or modify the eligibility requirements, and change the exchange rate for a Redemption, in each case, at any time and for any reason. The existence of the Broadcaster Program in no way creates an obligation for us to continue the Broadcaster Program in the future, nor does it guarantee that a Redemption payment can be made in the future, subject to applicable law. Caffeine reserves the right to review activity on any account on the Service to assess the validity of any Virtual Item, and to deny Redemption payments to any Broadcaster or media company representing a Broadcaster that Caffeine determines, at its discretion, has violated these Terms in any way.
        1. Third-Party Terms
        • Third-Party Services and Linked Websites. Caffeine may provide tools through the Service that enable you to export information, including User Content (defined below), to third-party services, including through features that allow you to link your account on Caffeine with an account on the third-party service or through our implementation of third-party buttons (such as “share” buttons). By using one of these tools, you agree that Caffeine may transfer that information to the applicable third-party service. Third-party services are not under Caffeine’s control, and, to the fullest extent permitted by law, Caffeine is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Caffeine’s control, and Caffeine is not responsible for their content. You are solely responsible for your compliance with the terms and conditions of any third-party services.
        • Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components, including those open source software components listed at https://www.caffeine.tv/attribution.html (collectively, “Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
        • User Content
          1. User Content Generally. Certain features of the Service may permit users to submit, webcast, or otherwise transmit (collectively, “Post”) to the Service, including Comments, Broadcasts, audio, reviews, photos, video, images, folders, data, text, audio, and other types of works (including, in each case and as applicable, any voice, audiovisual works, sound recordings, musical works, or other third-party content embodied therein) (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service.
          2. License Grant to Caffeine. By providing User Content to or via the Service, you grant Caffeine a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, display, perform (including by means of digital audio transmissions and on a through-to-the-audience basis), reproduce, record, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, and otherwise exploit and use (collectively, “Use”) all User Content you Post to or through the Service by any means and through any media formats and through any media channels now known or hereafter developed, for the purposes of (a) advertising, marketing, and promoting Caffeine, the Service and the availability of content on their Service, including any content you Post to the Service; (b) displaying and sharing your User Content to other Users of the Service and on third-party services (including third-party services owned by the third-party owner or licensor of content that may be included in your User Content); (c) allowing other Users to interact with, comment on, or Broadcast your User Content; (d) providing the Service as authorized by these Terms; and (e) sublicensing your User Content to third-party licensors of Caffeine for their Use of your User Content on and through all media formats and media channels now known or hereafter created. You further grant Caffeine a royalty-free, sublicensable license to Use your username, image, voice, and likeness to identify you within or as the source of any of your User Content. You must not Post any User Content on or through the Service or transmit to Caffeine any User Content that you consider to be confidential or proprietary. Any User Content Posted by you to or through the Service or transmitted to Caffeine will be considered non-confidential and non-proprietary, and treated as such by Caffeine, and may be used by Caffeine in accordance with these Terms without notice to you and without any liability to Caffeine. For the avoidance of doubt, the rights granted in the preceding sentences of this Section include the right to: (i) reproduce audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works; (ii) publicly display audiovisual works; and (iii) publicly perform and communicate to the public audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works, all on a royalty-free basis. This means that you are granting Caffeine the right to Use your User Content without the obligation to pay royalties to any third party, including a videogame copyright owner, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a "PRO"), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
          3. Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
          4. Specific Rules for Photographs and Images. If you Post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, but not to promote any third-party product, good or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
          5. Specific Rules for Musical Works, Sound Recordings, and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms to Caffeine. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into these Terms with Caffeine. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant Caffeine the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Service that may be claimed by your label. If you wish to perform a cover song and Post it to the Service, you are responsible for securing all rights in and to the underlying musical work before posting your recording or performance of such musical work to the Service. Finally, you are solely responsible for clearing the rights to any ambient or background music that is included or audible in any User Content you Post to the Service.
          6. Through-to-the-Audience Rights. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third-party services will not have any separate liability to you or any other third party for User Content Posted or Used on such third-party services via the Service.
          7. You Must Have Rights to the Content You Post. You must not Post any User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post. In addition, if you only own the rights in and to a sound recording or an audiovisual work, but not to the underlying musical works embodied in such sound recording or audiovisual work, then you must not Post such sound recording or audiovisual work, unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Caffeine under these Terms. You represent and warrant to us that: (a) you own the User Content Posted by you or otherwise have all rights necessary to grant the license set forth in these Terms; (b) the Posting and Use of your User Content does not violate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, or any other rights of any party, including the rights of any person visible in any of your User Content; (c) the Posting of your User Content will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties, including, but not limited to, any PROs; and (d) the Posting of your User Content does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person resulting from Posting your User Content, including from Caffeine’s exercise of the license set forth in Section 9.2.
          8. User Content Representations and Warranties. Caffeine disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
            1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Caffeine and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Caffeine, the Service, and these Terms;
            2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Caffeine to violate any law or regulation; and
            3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate. If another User has blocked you from submitting Comments, you will not attempt to circumvent such blocks, including, but not limited to, by creating a new account on the Service to send Comments to any User who previously blocked you.
          9. Waiver of Rights to User Content. Except as set forth in a written and signed agreement entered into between you and Caffeine in addition to these Terms, by Posting User Content to the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to the Service.
          10. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. Caffeine may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable, including User Content that Caffeine determines is or could be interpreted to be abusive, bigoted, defamatory, harassing, harmful, infringing, obscene, offensive, pornographic, racist, threatening, unlawful, vulgar or otherwise inappropriate (collectively, “Objectionable Content”). You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Caffeine with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a User or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Caffeine does not permit copyright-infringing activities on the Service.
          11. FTC Endorsement Guidelines. Notwithstanding any other provision in these Terms, you represent and warrant to us that you will comply with all laws and regulations regarding endorsements or testimonials made by you in any User Content, including that you will: (a) make only accurate statements that represent your genuine experience with any product, good or service; and (b) make all required disclosures pursuant to the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such guides may be amended from time-to-time by the FTC. Follow this link for further information on complying with the FTC's guidance: https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement-endorsements/091005revisedendorsementguides.pdf.
          12. Monitoring Content. Caffeine does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Caffeine reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Caffeine chooses to monitor the content, Caffeine still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below).
        1. Communications
          1. Text Messaging. Caffeine and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. Certain features of the Services may allow users to send text messages to others (including “invite a friend” and other similar features), and you may receive text messages from others through these features. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM CAFFEINE, YOU CAN EMAIL SUPPORT@CAFFEINE.TV, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
          2. Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
          3. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
        2. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
          1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
          2. Post any Objectionable Content;
          3. harass, threaten, demean, embarrass, bully, or otherwise harm any other Users;
          4. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
          5. you must not attempt to access or search the Service or Content or download Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools and the like) other than the software or search agents provided by Caffeine or other generally available third-party web browsers;
          6. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
          7. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
          8. provide any false personal information to Caffeine or its payment processing vendors, create accounts using an automated method, or create additional accounts that artificially increase the popularity or “follower count” of your account or your User Content;
          9. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
          10. sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials;
          11. use an account you control to send Gifts in the Broadcast of another account you control;
          12. make a purchase of Gold subsequently associated with a chargeback;
          13. violate the Community Rules as Caffeine updates from time to time;
          14. restrict, discourage, or inhibit any person from using the Service;
          15. use the Service for gambling;
          16. Broadcast while violating the terms of service, EULA, or comparable rules of any third party (such as a game publisher or digital distribution platform); or
          17. attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.
        3. Copyright and Intellectual Property Protection
          1. Respect of Third Party Rights. Caffeine respects the intellectual property of others and takes the protection of intellectual property very seriously, and Caffeine asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
          2. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
        Caffeine Inc.
        570 El Camino Real #150-408
        Redwood City, CA 94063
        (650) 460-0742
        Email: copyright@caffeine.tv
        1. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
          1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
          2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
          3. a description of the material that you claim is infringing and where it is located on the Service;
          4. your address, telephone number, and email address;
          5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
          6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
        Your Notification of Claimed Infringement may be shared by Caffeine with the user alleged to have infringed a right you own or control, and you consent to Caffeine making such disclosure. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
        1. Repeat Infringers. Caffeine’s intellectual property policy is to: (a) remove or disable access to material that Caffeine believes in good faith or upon receipt of a compliant notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any User who repeatedly or egregiously infringes the copyrights or other intellectual property rights of third parties. Further, Caffeine retains the right to terminate the account of any User after receipt of a single notification of claimed infringement or upon Caffeine’s own determination.
        2. Counter Notification. If you receive a notification from Caffeine that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Caffeine with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Caffeine’s Designated Agent through one of the methods identified in Section 12.2 and include substantially the following information:
          1. your physical or electronic signature;
          2. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
          3. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
          4. your name, address and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Caffeine may be found, and that you will accept service of process from the person who provided notification under Section 12.2 above or an agent of such person.
        A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
        1. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Caffeine in response to a Notification of Claimed Infringement, then Caffeine will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Caffeine will replace the removed User Content or cease disabling access to it in 10 business days, and Caffeine will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Caffeine’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Caffeine’s system or network. Nothing in this Section precludes Caffeine from removing any User Content in its sole discretion as authorized in these Terms.
        2. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Caffeine] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Caffeine reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
          1. Modification of Terms. We may, from time to time, change these Terms . Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will, unless otherwise stated, be effective 30 days after posting or notice to you of the revisions. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Subject to the last sentence of this Section 13, the most recent modified Terms you agree to, if any, will supersede any prior versions of these Terms. If you do not agree to the modified terms, you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Notwithstanding the preceding sentences of this Section 13, no revisions to these Terms will apply to any dispute between you and Caffeine that arose prior to the effective date of those revisions.
        • Term, Termination, and Modification of the Service
            1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.
            2. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Caffeine may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by sending written notification to Caffeine via our Support Center.
        • Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Caffeine any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4.3, 5, 6.4, 6.6, 7.5, 9, 14.3, and 15 – 19 will survive.
        • Modification of the Service. Caffeine reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features and functionalities of the Service), temporarily or permanently, without notice to you. Caffeine will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
        • Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will indemnify, defend, and hold Caffeine, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Caffeine Entities”) harmless from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) your violation of the terms of any third-party service; or (e) any dispute or issue between you and any third party, including other Users of the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
          1. Disclaimers; No Warranties
            1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CAFFEINE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CAFFEINE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CAFFEINE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
        • NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR CAFFEINE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE CAFFEINE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
            1. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 16 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Caffeine does not disclaim any warranty or other right that Caffeine is prohibited from disclaiming under applicable law.
          1. Limitation of Liability
            1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CAFFEINE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CAFFEINE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
            2. EXCEPT AS PROVIDED IN SECTION 18.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE CAFFEINE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO CAFFEINE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
            3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
          2. Dispute Resolution and Arbitration
            1. Generally. In the interest of resolving disputes between you and Caffeine in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.4, you and Caffeine agree that every dispute arising in connection with these Terms, or the use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CAFFEINE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
            2. Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
            3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to Caffeine Inc., Attention: Chief Executive Officer and Legal – Arbitration Opt-Out, 1001 Marshall Street, 3rd Floor, Redwood City CA 94063 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Caffeine receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.3. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
            4. Arbitrator. Any arbitration between you and Caffeine will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Caffeine. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
            5. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Caffeine’s address for Notice is: Caffeine Inc., 1001 Marshall Street, 3rd Floor, Redwood City CA 94063, Attn: Chief Executive Officer and Legal. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Caffeine may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Caffeine must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Caffeine in settlement of the dispute prior to the award, Caffeine will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
            6. Fees. If you commence arbitration in accordance with these Terms, Caffeine will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Caffeine for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
            7. No Class Actions. YOU AND CAFFEINE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Caffeine agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
            8. Modifications to this Arbitration Provision. If Caffeine makes any future change to this arbitration provision, other than a change to Caffeine’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Caffeine’s address for Notice of Arbitration, in which case your account with Caffeine will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
            9. Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if Caffeine receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.3 will govern any action arising out of or related to these Terms.
          3. Miscellaneous
            1. General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Caffeine regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
            2. Consideration. Caffeine currently provides you with access to the Service for free. In return for receiving this free access, you acknowledge and agree that Caffeine may generate revenues, increase goodwill or otherwise increase the value of Caffeine from your use of the Service, and you will have no right to share in any such revenues, goodwill or value whatsoever. Caffeine in its sole discretion may eventually charge you fees or require the use of Gold to access certain features of the Service. Caffeine will provide you with advance notice of any such changes before they take effect.
            3. Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Caffeine submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
            4. Privacy Policy. Please read the Caffeine Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Caffeine Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
            5. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
        • Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in Section 10 of these Terms and our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
          1. Contact Information. The Service is offered by Caffeine Inc., located at 1001 Marshall Street, 3rd Floor, Redwood City CA 94063. You may contact us by sending correspondence to that address, by emailing us at support@caffeine.tv, or by visiting our Support Center.
          2. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
          3. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
          4. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
          5. Export Controls and Trade and Economic Sanctions. You agree to comply fully with all applicable U.S. and international export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (“Export Laws”). Specifically, You agree not to, directly or indirectly, sell, export, reexport, transfer, or divert to or otherwise allow the use of the Service in any destination or by any entity or person or for any use prohibited by the laws or regulations of the United States or other applicable country without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This clause shall survive termination or cancellation of this Agreement.
        1. Notice Regarding Apple. This Section 20 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Caffeine only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.


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