Effective Date: August 10, 2018
These Terms of Service ("Terms") constitute a binding contract between you, an individual user ("you") and Caffeine Inc. ("Caffeine," "we," "us" or "our") governing your use of Caffeine's social broadcasting service accessible via the website located at www.caffeine.tv and other authorized platforms, including but not limited to Caffeine's mobile applications (collectively, the "Service"). BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MUST NOT ACCESS OR USE THE SERVICE.
Material Terms: As provided in greater detail in these Terms (and without limiting the express language of these Terms), you acknowledge the following:
- the Service is provided "as is" without warranties of any kind and Caffeine's liability to you is limited; and
- we will resolve disputes arising under these Terms through binding arbitration. By accepting these Terms, as provided in greater detail in Section 10 of these Terms, you and Caffeine are each waiving the right to a trial by jury or to participate in a class action.
1. General Terms and Conditions.
- Description. The Service may provide you with a platform to: (i) live webcast to other Users (defined below) 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 Caffeine) as permitted by Caffeine in its sole discretion (each, a "Broadcast"); (ii) view Broadcasts simultaneously with other Users; (iii) make written comments to other Users through the functionality on the Service ("Comments"); (iv) make Broadcasts that incorporate, respond to, or comment on the Broadcasts of other Users; (v) invite other Users to view your Broadcasts; (vi) link your Broadcasts to certain social media platforms integrated with the Service; and (vii) potentially earn real money from Caffeine as a result of your Broadcasts. Any person who uses the Service, including You as well as any media companies Broadcasting on the Service, will be referred to herein as a "User." Any User who Broadcasts on the Service, or to social media platforms integrated with the Service, will be referred to herein as a "Broadcaster."
- Changes to these Terms. You understand and agree that Caffeine may change these Terms at any time without prior notice. Caffeine will endeavor to provide you with prior notice when there are any material changes, and may require that you subsequently take an affirmative action acknowledging agreement to the revised Terms before continuing to access the Service. You may read a current, effective copy of these Terms at any time at www.caffeine.tv/tos.html. The revised Terms will become effective at the time of posting on the Service, and your use of the Service after such time will constitute your acceptance of the revised Terms. If any change to these Terms is not acceptable to you, then your sole remedy is to stop using the Service. Notwithstanding the preceding sentences of this Section 1.b, no revisions to these Terms will apply to any dispute between you and Caffeine that arose prior to the effective date of those revisions.
- Consideration. Caffeine currently provides you with access to the Service for free. In return for enjoying 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 on the Service. Caffeine will provide you with advance notice of any such changes before they take effect.
- Jurisdictional Issues. The Service is controlled and operated by Caffeine from its offices in the State of California. Caffeine makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
- Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY CAFFEINE. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age and entered into this Agreement on your behalf. If you are using the Service on behalf of an entity, organization, or company, then you represent and warrant 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.
2. Accounts and Commenting.
- Log-In Credentials. While you may browse certain public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service you must register an account with us (an "Account").
- Account Security. You are responsible for the security of your Account and are fully responsible for all activities that occur through the use of your log-in credentials. You agree to notify Caffeine immediately at firstname.lastname@example.org or create a ticket via Caffeine's support platform if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Caffeine will not be liable for any loss or damage arising from unauthorized use of your log-in credentials or loss of your log-in credentials prior to your notifying Caffeine of such unauthorized use or loss thereof. Separate log-in credentials may be required to access External Sites (defined in Section 8 below). Except in the case of a Subscribing Entity, Accounts may not be transferred or shared between a User and any other person or entity, including by sharing log-in credentials. If you share your log-in credentials with anyone, you will be deemed to have authorized that person to use your credentials for all purposes, including for Transactions in Virtual Items.
- Subscribing Entities. If you are using or opening an Account on behalf of a company, entity or organization (including, but not limited to, a media company seeking to Broadcast on the Service) (each a "Subscribing Entity"), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (ii) agree to be bound by these Terms on behalf of such Subscribing Entity.
- Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as Caffeine requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right, in our sole discretion, to disallow, cancel, remove, or reassign usernames and permalinks or to suspend or terminate your Account, without liability to you or any third party, and with or without prior notice to you including, without limitation, if activities occur on your Account which we believe would or might constitute a violation of these Terms, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Caffeine, violate any applicable laws or regulations, or if messages sent to the e-mail address you provide are returned as undeliverable.
- Commenting. You may be able to send Comments to others through the Service. You represent that you: (i) are solely responsible for initiating all Comments and Caffeine merely serves as a technology platform; (ii) will not send Comments to others who have blocked you from sending them Comments (including if you were blocked while using an alternate Account controlled by you); (iii) will indemnify and hold Caffeine harmless from any and all claims arising out of your Comments; and (iv) are solely responsible for all fees and charges associated with such Comments.
3. Intellectual Property Rights.
- License. Subject to your complete and ongoing compliance with these Terms, Caffeine hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely in strict compliance with the provisions of these Terms.
- Content. Except for User Content (defined in Section 5.a below), the content that Caffeine provides to you on or that is otherwise accessible through the Service, including, without limitation, any text, graphics, software, interactive features, information or other materials, is protected by copyright or other intellectual property rights and owned by Caffeine, its licensors or the copyright owner thereof (collectively, the "Caffeine Content"). Moreover, Caffeine or its licensors own all design rights, database and compilation rights and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
- 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
- Restrictions. Caffeine hereby reserves all rights not expressly granted to you in this Section 3. 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 Caffeine Content or Caffeine Trademarks located or displayed on or within the Service.
4. Virtual Items.
- Digital Items. Certain features of the Service allow Users to react to favored content with virtual items or features ("Digital Items" or "Items") in order to express approval of the content. Reacting to content with Digital Items is a transaction solely between the User and Caffeine. Each reaction with a Digital Item has a cost in digital points ("Gold") determined by Caffeine. Users can obtain Gold in three ways: (i) by purchasing Gold on the Service with any payment card or tender accepted by Caffeine from time to time, or via a pre-paid gift card at retail stores; (ii) by receiving promotional or bonus Gold from Caffeine (involving a sponsor or otherwise); and (iii) by redeeming Credits (defined below) for Gold, in each case, only in a Transaction provided by Caffeine. Gold may be used only to purchase Digital Items, content or other digital goods or services from Caffeine. Gold may not be transferred between Users or accounts and may not be converted, exchanged or otherwise redeemed for government-issued currency or virtual currency, except as required by law. We may limit the amount of Gold that you may purchase or hold at any time.
- Not Currency. Gold, Digital Items, and Credits (collectively, "Virtual Items") each perform different functions on the Caffeine platform and each are subject to their own terms and conditions, as specified in these Terms. 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 Digital Item, you are sending it to Caffeine to display and register your approval of the referenced content. Caffeine will show a Digital Item as "received" after it is displayed during a Broadcast. Based on the popularity of a Broadcaster's content, as indicated by the number and types of Digital Items that Caffeine receives in connection with that content, Caffeine will determine the number of Credits to issue to the Broadcaster. Any Virtual Items that you obtain or access on the Service are provided to you under a limited, personal, revocable, non-transferable license to use only on the Service. The Service may enable you to react to Users or content using Digital Items; but any and all transfers of Virtual Items between Users (including the transfer of accounts) are expressly prohibited, including, without limitation, any sale or exchange, whether direct or through an intermediary such as an auction service. Users may not require that anyone react with a Digital Item as a condition to view content that is otherwise publicly available on the Service or elsewhere; however, Users may block other Users from viewing their content for other reasons, such as to prevent abuse. Gold and Digital Items are provided to you for entertainment purposes only. Virtual Items are not property, and you have no right, title, or interest in any Virtual Items, nor any right to exchange Virtual Items for any virtual currency or for government-issued currency, except as required by law.
- 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.
- Availability of Transactions. Caffeine may from time to time make available opportunities for you to purchase, exchange, spend, receive, or redeem (each, a "Transaction") certain Virtual Items through the Service. Each such Transaction is solely between you and Caffeine. You agree that Transactions are offered in Caffeine's sole discretion and the availability of Transactions is subject to change without prior notice to you. When you choose to make a Transaction through the Service, such Transaction is final and cannot be reversed, refunded, or returned. Caffeine reserves the right to reject or impose limitations on any Transaction(s) in its sole discretion, including, without limitation, any Transactions that appear to have been placed in bulk, by automated methods, or by dealers, resellers, or distributors. Any Transaction offered or made available on the Service is void where prohibited.
- 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. By clicking to complete the purchase, you authorize us and our payment processors to charge your provided payment method (such as a credit card or debit card) the full amount of such purchase, including any taxes. 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.
- Credits. Reacting to content with Digital Items may increase the reputation rating on the Service (recorded in "Credits") of the Broadcaster. Credits are used as a record of a reputational scoring system designed to reflect the quality and popularity of particular content or Broadcasters. Whether or how a Broadcaster may benefit from Credits is subject to Caffeine's sole discretion or as otherwise set forth in any other written and signed agreement entered into between a Broadcaster and Caffeine in addition to these Terms. Only Caffeine may assign Credits, and the number of Credits assigned to a Broadcaster may be set, increased or decreased by Caffeine in its sole discretion.
- Redemption of Credits. Caffeine wishes to motivate Users to Post (as defined in Section 5.a) content that is popular and has high quality, as reflected by Caffeine's proprietary platform metrics for estimating popularity, reputation, and quality as tracked through Credits. Accordingly, Caffeine may provide opportunities from time to time for Users to redeem Credits for Gold or currency. The rate of conversion of Credits to Gold or currency will be established, and may be changed, from time to time, by Caffeine in its sole discretion. For clarity, Caffeine is the sole decision-maker as to whether and how Broadcasters may be compensated and is not required to provide compensation opportunities to Broadcasters. Unless otherwise set forth in a separate written and signed agreement between a Broadcaster and Caffeine, Broadcasters are not entitled to any defined compensation for their content. In order to enable Caffeine and its payment processors to comply with all applicable laws, regulations, and requirements regarding payment of money, any User who wishes to take advantage of an opportunity to redeem Credits for currency (a "Redemption") will be required to provide certain requested information which may change from time to time, but will likely include, without limitation, bank account name, the address of your primary residence, your full legal name, a governmental issued identification number, tax information, and copies or images of related documents ("Verification Documentation"). Caffeine may (and, in some cases, is legally required to) conduct certain checks and verifications prior to making any payment, and reserves the right to decline or cancel any Redemption for any reason, including, without limitation, in the event that the provided information appears to be inaccurate, cannot be verified, does not uniquely identify the User, or that payment would be inappropriate in Caffeine's sole discretion. All Redemptions are transactions solely between Caffeine and the User receiving the Redemption; provided, however, that Caffeine may use third-party payment processors to securely collect and store the Verification Documentation, and to make the payment transactions arising from Redemptions, and all such transactions are subject to the legal terms and privacy policies of our payment processors. Caffeine may give you the option of selecting among a number of payment methods. Any and all fees and costs imposed on a Redemption, such as currency exchange fees, bank fees, deposit fees, and wire transfer fees, as well as any fees incurred due to a rejection by your bank, and any monies required to be withheld by tax authorities, will be deducted from the amount of money due to the User in connection with such Redemption. Except as otherwise set forth in a written and signed agreement entered into between a Broadcaster and Caffeine, Caffeine may also impose restrictions on Redemptions, such as requirements regarding (i) the amount or quality of content that must be provided by a Broadcaster prior to a Redemption, (ii) 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, (iii) whether the Broadcaster is currently active on the platform, (iv) the accumulation of a minimum total reputation score as measured in Credits prior to Redemption, (v) a minimum number of Credits that may be redeemed per Redemption, and (vi) Broadcaster's compliance with all the provisions of these Terms.
- Forfeiture and Expiration of Virtual Items. Virtual Items do not have an expiration date, but may be terminated, forfeited, reduced, discontinued, or otherwise cease as set forth in these Terms. If Caffeine terminates your Account in accordance with this Agreement, your license to all Virtual Items (including 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. Credits may not exist in perpetuity. If you fail to access your Account for a period of twelve consecutive months, the Credits associated with your Account will be gradually reduced in even or uneven increments over the following twelve 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.
5. User Content.
- Definition. "User Content" means any content that you submit, webcast or otherwise transmit (collectively, "Post") to the Service, including, without limitation, Comments, Broadcasts (including any third party content included therein, including, without limitation, any audiovisual works, sound recordings or musical works), images, audio (including voice), and other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws. For clarity, User Content excludes any Caffeine Content and Feedback (defined below).
- Your Rights to User Content. YOU RETAIN COPYRIGHT AND ANY OTHER PROPRIETARY RIGHTS THAT YOU MAY HOLD IN ANY USER CONTENT THAT YOU POST TO THE SERVICE SUBJECT TO THE RIGHTS THAT YOU GRANT IN THESE TERMS.
- License to Caffeine. You hereby grant to Caffeine an unrestricted, assignable, sublicensable, irrevocable, royalty-free license throughout the universe to reproduce, record, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, and otherwise exploit and use (collectively, "Use") all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Caffeine, the Service and the availability of content on their Service, including any content you Post to the Service; (ii) displaying and sharing your User Content to other Users of the Service and on third party services (including, but not limited to, third party services owned by the third-party owner or licensor of content that may be included in your User Content); (iii) allowing other Users to interact with, comment on, or Broadcast your User Content; (iv) providing the Service as authorized by these Terms; and (v) sublicensing your User Content to third party licensors of Caffeine for their Use of your User Content on and through all distribution channels now known or hereafter created. You further grant Caffeine a royalty-free, sublicensable license to Use your user name, 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, but are not limited to, the right to (A) reproduce audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works; (B) publicly display audiovisual works; and (C) 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, but not limited to, 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.
- You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service in compliance with the grant of rights set forth in Section 5.c. 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 to the Service 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 that: (i) you own the User Content Posted by you on the Service or otherwise have the right to grant the license set forth in these Terms; (ii) the Posting and Use of your User Content on or through the Service 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, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service 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; and (iv) the Posting of your User Content on the Service 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 on the Service, including from Caffeine's exercise of the license set forth in Section 5.c.
- Specific Rules for Musical Works 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 us. 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 this Agreement with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us 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.
- 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 External Services will not have any separate liability to you or any other third party for User Content Posted, viewed or otherwise used on such External Services via the Service.
- 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.
- Disclaimer. We are under no obligation to edit or control User Content that you or any other User Posts on the Service 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, such as, without limitation, 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.
- FTC Endorsement Guidelines. Notwithstanding any other provision in these Terms, you represent and warrant that you will comply with all laws and regulations regarding endorsements or testimonials made by you in any User Content, including that you will (i) make only accurate statements that represent your genuine experience with any product, good or service and (ii) 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.
6. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. Caffeine respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on the Service.
- Repeat Infringer Policy. Caffeine's intellectual property policy is to (i) remove or disable access to material that Caffeine believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Service; and (ii) remove any User Content Posted to the Service by "repeat infringers." Caffeine considers a "repeat infringer" to be any User that has repeatedly infringed or repeatedly been charged with infringing the rights of third parties by Posting User Content to the Service for which Caffeine has received takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Caffeine has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Caffeine's own determination.
- 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" containing the following information to the Designated Agent identified below. 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 hereby consent to Caffeine making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Caffeine to locate the material;
- Information reasonably sufficient to permit Caffeine to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. Caffeine's designated agent for receipt of Notifications of Claimed Infringement ("Designated Agent") can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail: 570 El Camino Real #150-408, Redwood City, CA 94063
- Counter Notification. If you receive a notification from Caffeine that material you Posted on 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 6(d) above and include substantially the following information:
your physical or electronic signature;
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;
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
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 the your address is outside of the United States, for any judicial district in which Caffeine may be found, and you will accept service of process from the person who provided notification in accordance with Section 6.d above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
- 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.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
Any 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.
17 U.S.C. § 512(f).
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.
For clarity, and notwithstanding anything in this Section 6 to the contrary, Caffeine in its sole discretion may (but has no obligation to) disclose publicly any and all Notices of Claimed Infringement and Counter Notifications.
7. Restrictions on Use of the Service.
- Without limiting any other terms of these Terms, when using the Service you agree not to (and not to attempt to):
- decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service;
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- delete or alter any material Caffeine makes available on the Service;
- frame or link to any of the materials or information available on the Service;
- Use any Caffeine Trademarks, third party Trademarks, Caffeine Content or User Content in any manner that is not expressly authorized by these Terms;
- access, tamper with, or use non-public areas of the Service, Caffeine's (and its hosting companies') computer systems and infrastructure, or the technical delivery systems of Caffeine's providers;
- 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;
- create a false identity or impersonate another person or entity in any way;
- sell, buy, or otherwise transfer (or offer to sell, buy, or otherwise transfer) any Account or username, either directly or indirectly;
- use an Account you control to react with Digital Items in the Broadcast of another Account you control;
- make a purchase of Gold subsequently associated with a chargeback;
- violate the Community Rules, as Caffeine updates from time to time;
- restrict, discourage, or inhibit any person from using the Service;
- use the Service for gambling;
- gain unauthorized access to the Service, or to other computers or websites connected or linked to the Service, or personally identifiable information of any User;
- Post any Objectionable Content;
- Broadcast while violating the terms of service, EULA, or comparable rules of any third party (such as a game publisher or digital distribution platform);
- post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
- violate any federal, state, or local laws or regulations, or the terms of these Terms; or
- assist, encourage, or permit any person in engaging in any of the activities described above.
8. External Sites.
The Service may contain links to, and/or the ability to export Broadcasts to, or embed content in, other websites, apps or other online properties that are not owned or controlled by Caffeine (collectively, "External Sites"). The content of External Sites is not developed or provided by Caffeine. Caffeine is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on External Sites. You should contact the site administrator or Webmaster for External Sites if you have any concerns regarding content located on those External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites, including, without limitation, when you transmit Broadcasts to External Sites.
While our own staff works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending Caffeine or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively "Feedback"), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Caffeine, you agree that:
- Caffeine has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Caffeine is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Caffeine perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose throughout the universe and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Dispute Resolution.
- General. Except as set forth in a separate written and signed agreement entered into between you and Caffeine in addition to these Terms, and in the interest of resolving disputes between you and Caffeine in the most expedient and cost-effective manner, you and Caffeine agree that any dispute arising out of or in any way related to these Terms or your 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 in any way related to these Terms or your use of the Service, 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 AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 10.a above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Caffeine will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. 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.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). Caffeine's address for Notice is: 570 El Camino Real #150-408, Redwood City, CA 94063, Attn: Chief Executive Officer and Legal. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) 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 is received, you or Caffeine may commence an arbitration proceeding. 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 dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Caffeine prior to selection of an arbitrator, Caffeine will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Caffeine in settlement of the dispute prior to the arbitrator's award; or (C) $15,000.
- 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 $15,000 or as set forth below, 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 $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance-based telephone hearing; or (iii) 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. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. 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.
- 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.
- Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if Caffeine makes any future change to this arbitration provision, other than a change to Caffeine's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Caffeine's address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Caffeine.
- Enforceability. If Section 10.f above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
11. Limitation of Liability and Disclaimer of Warranties.
THE TERMS OF THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
- NEITHER CAFFEINE NOR ITS AFFILIATES (EACH A "CAFFEINE PARTY" AND, COLLECTIVELY, "CAFFEINE PARTIES") MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE OR ANY CONTENT THEREON. ACCORDINGLY, THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE CAFFEINE PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SERVICE.
- WITHOUT LIMITING SECTION 11.a, THE CAFFEINE PARTIES DO NOT WARRANT THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO CAFFEINE PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- IN NO EVENT WILL ANY CAFFEINE PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE CAFFEINE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 10.d(C) OR IN ANY OTHER WRITTEN AND SIGNED AGREEMENT ENTERED INTO BETWEEN YOU AND CAFFEINE IN ADDITION TO THESE TERMS, CAFFEINE'S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER CAFFEINE PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THESE TERMS IS LIMITED TO U.S. $100.
12. Third Party Disputes.
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY OTHER USER), IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE THE CAFFEINE PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Caffeine Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting: from (a) your breach of these Terms; (b) any Uses of User Content you Post to the Service; or (c) your access to, use, or misuse of the Caffeine Content, Trademarks or the Service. Caffeine will provide notice to you of any such claim, suit, or proceeding. Caffeine reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Caffeine believes that you are unwilling or incapable of defending Caffeine's interests. In such case, you agree to cooperate with any reasonable requests assisting Caffeine's defense of such matter at your expense.
14. Term and Termination of the Terms.
- Term. As between you and Caffeine, the term of these Terms commences as of your first use of the Service and continues until the termination of these Terms by either you or Caffeine.
- Termination. You may terminate these Terms by sending written notification to Caffeine via our support site link.caffeine.tv/help and terminating your use of the Service. Caffeine reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to all or any part of the Service or to terminate these Terms at any time without prior notice or liability, including if you breach any provision of these Terms or violate the rights of any third party on or through the Service. Caffeine reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability. Sections 1.b, 1.c, 1.e,1.f, 2.b, 3.b, 3.c, 3.d, 4 through 16, and all defined terms used therein will survive the termination of these Terms indefinitely.
15. Consent to Electronic Communications.
These Terms are governed by the internal substantive laws of the State of Delaware without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Caffeine as a result of these Terms or use of the Service. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. Failure of Caffeine to act on or enforce any provision of these Terms will not be construed as a waiver of that provision or any other provision in these Terms. No waiver will be effective against Caffeine unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Caffeine and you in writing, these Terms constitute the entire agreement between you and Caffeine with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. These Terms will inure to the benefit of our successors and assigns. You may not assign these Terms or any of the rights or licenses granted hereunder without the prior express written consent of Caffeine. Caffeine may assign these Terms, including all its rights hereunder, without restriction. For the purposes of these Terms, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction.
17. Contact Us.