Wowza ClearCaster Cloud Orchestration
By accessing and using the Service, or by otherwise indicating your acceptance of these Terms, You agree to be bound by these Terms. You hereby represent and warrant to Wowza that You are at least eighteen (18) years of age or are otherwise capable of entering into and performing legal agreements. If you do not agree to each and every term of these Terms, You must not click “I Accept” or “I Agree” (or similar consent language); and, You may not use any portion of the Service; instead, you must notify Wowza immediately and Wowza will provide you with a refund of any paid but unused Fees (as defined herein) if you have not used the Service.
If You use the Service on behalf of a legal entity (such as a company), You hereby represent to Wowza that You have the authority to bind that entity and that Your acceptance of these Terms will be treated as acceptance of these Terms by that entity; in that event, “You” and “Your” will refer to that entity herein.
When using the Service, You will be subject to and will comply with any additional policies, guidelines, or rules applicable to You or to specific services and features which may be posted or distributed from time to time (the “Policies”). All such Policies are hereby incorporated by reference into these Terms. In the case of any inconsistency between these Terms and any other document that has been incorporated by reference herein, these Terms will control.
Wowza reserves the right, at Wowza’s discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Service or to www.wowza.com (the “Site”). Please check these Terms, the Site, and each of the Policies periodically for changes. Your continued use of the Service after Wowza has posted or otherwise notified You of changes to these Terms or any Policy constitutes Your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or Fees (as defined herein) will automatically be effective upon being posted to the Service or to the Site (or such later effective date as may be indicated at the top of such revised Terms).
1. Access to the Service; Ownership; Hardware Required
1.1. Subject to Your continued compliance with these Terms and timely payment of Fees, Wowza will use commercially reasonable efforts to provide the Services to You on a non-exclusive, non-transferable, and revocable basis. Wowza reserves the right, in its sole discretion, to make unscheduled changes, updates, or enhancements to the Service at any time. Wowza may add or remove functionalities or features, or suspend or stop the Service altogether, at any time and without providing prior notice to You. You may use the Service solely to stream Content (as defined herein) over the internet or other communications networks, as provided herein. If You have elected to record your Content, Wowza will store a copy your Content for a period of seven (7) days, during which time You may save a copy locally. After seven (7) days all Content will be deleted by Wowza.
1.2. Except for Your Content (as defined below), the data, software, and materials in, on, and used to provide the Service including, without limitation, and the text, graphics, interactive features, and trademarks (including logos), as well as the selection, organization, coordination, compilation, and overall look and feel of the Service (collectively, the “Materials”) are the sole intellectual property of Wowza, its licensors, or its suppliers. The Materials are protected by copyright, trade dress, patent, trademark, and other laws, as well as international conventions, and proprietary rights. Except as expressly authorized under these Terms or otherwise in writing by Wowza, You will not sell, license, distribute, copy, modify, publicly perform, display, transmit, publish, edit, adapt, create derivative works from, or otherwise make use of the Materials or the Service. You will retain all copyright, trademark, or other proprietary notices of Wowza. Wowza reserves all rights in and to the Service, and Materials not expressly granted to You
1.3. In the event that You provide comments, suggestions, ideas, or recommendations to Wowza with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, “Feedback”), You hereby grant to Wowza a world-wide, royalty free, irrevocable, transferable, perpetual license to use and otherwise incorporate any Feedback in any way Wowza desires, including without limitation in connection with the Service; in no event will Wowza owe you anything with regard to Feedback or Wowza’s use of Feedback.
1.4. In order to use the Service, You may be required to purchase a hardware device from one or more authorized vendors or resellers (which Wowza may update from time to time without advance notice currently Ciara, a Hypertec brand (https://ciaratech.com)).
2. Your Account.
2.1. To obtain access to the Service, You may be required to obtain an account with Wowza (become a “Registered User”), by completing a registration form and designating a user ID and password. Until You apply for and become a Registered User, Your access to the Service will be limited to the areas of the Service, if any, that Wowza makes available to the general public. When registering with Wowza You must: (a) provide true, accurate, current, and complete information about yourself as requested by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete at all times.
2.2. Only You may use Your Wowza account. You must keep Your account and passwords confidential and not authorize any third party to access or use the Service on Your behalf, unless We provide an approved mechanism for such use. You must contact Us right away if You suspect misuse of Your account or any security breach in the Service. You are responsible for all activities that take place with Your account. Without limiting any limitation of liability in these Terms, Wowza will not be liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of or in connection with Your failure to comply with this Section 2.
2.3. Usage Data: We collect and store information about Your usage of the Services, including data on network bandwidth utilized, disk space consumed, stream duration, viewer counts, CDN usage (including regional usage), feature usage, and other data about the operation and performance of Your streams. The usage data may also be used by Wowza support systems and customer service to monitor and troubleshoot Your streams, if needed. In general, Wowza endeavors to store this usage data on a rolling basis for one year while You are a customer in good standing. Wowza will endeavor to retain detailed usage data, with the most granular information about events and viewers, for a period of 30 days following its creation. After 30 days, Wowza may aggregate usage and viewing data without the continued preservation of the raw data. Wowza does not intend for its data collection and retention efforts in connection with Your use of the Services to be exhaustive or redundantly-managed and there is a chance Wowza will fail to collect or be unable to retrieve Your data even upon request. If access to your usage data is a critical business function, please contact Wowza to arrange to receive this data via API. Wowza does not make any warranties about its data collection or retention efforts and accepts no liability for collection or production of usage data.
2.4. If a third party such as an employer provided Your account or directed or authorized the creation of Your account, that third party has rights to Your account and may: manage Your account, reset Your password, or suspend or cancel Your account; view Your account’s usage and profile data, including how and when Your account is used; and view information in Your account. If You are an individual Registered User of the Service, and the domain of the primary email address associated with Your account is owned by an organization and was assigned to You as an employee, contractor, or member of such organization, and that organization wishes to establishes a commercial relationship with Us and add Your account to such relationship, then, if You do not change the email address associated with Your account, Your account may become subject to the commercial relationship between Wowza and such organization and controlled by such organization.
2.5. Wowza reserves the right, in its sole discretion, to deactivate, change, and require You to change Your Wowza user ID and any custom or vanity user names, URLs, custom links, or vanity domains You may obtain through or use with the Services for any reason or for no reason at any time, with or without prior notice.
2.6. You will use reasonable efforts to communicate these Terms to anyone who may or will come into contact with or use the Service through Your account, including, without limitation, any employees, contractors, agents or customers. You will ensure such third parties’ compliance with these Terms and will be liable to Us for any act or omission by any such third party to the same extent that You would have been liable to Us had You committed such act or omission.
3.1. We don’t claim ownership of any audiovisual content that is uploaded or transmitted to, or stored, distributed, processed, or displayed by the Service (collectively, “Content”). We also don’t control, verify, or endorse the Content that You and others make available to, on, through, or from the Service. We may provide functionality and compatibility with third party services that allow You to control who may access Your Content. If You enable the features that allow You to share the Content with others, anyone You’ve shared content with (including the general public, in certain circumstances) may have access to Your Content.
3.2. You hereby grant Wowza and its contractors the right, to view, use, modify, adapt, reproduce, transmit, distribute, display, and disclose Content to the extent necessary (as determined by Wowza in its sole discretion) to provide the Service, to comply with any law or judicial order, for promotional or similar purposes, or as otherwise permitted by these Terms. Notwithstanding anything to the contrary herein, Your Content is not considered confidential information, and Wowza has no obligation to keep Your Content confidential or secret.
3.3. The Service is not intended to be a service in which users archive, back up, or keep original or irreplaceable copies of Content. Similarly, even where “recording” functionality is offered, the Service should not replace more secure means of recording and preserving Content. Wowza does not employ many of the measures commonly used by storage services to ensure that Content is undoubtedly preserved. You should, outside of the Service, backup and keep copies of all Content in “real time,” immediately upon its creation, as Wowza may modify, correct, delete, and restrict Your access to any Content at any time without your consent and without prior notice to you. Wowza will have no liability of any kind related to the loss, deletion, modification, or destruction of Content, or for any failure to secure Content, to make Content available to You, or to encrypt Content.
3.4. You represent, covenant, and warrant that: (a) You have all the rights in the Content necessary for You to use the Service and to grant the rights in this Section; and, (b) the storage, use or transmission, or display or playback, of the Content and Your use of the Service doesn’t violate any law, these Terms, or the rights of any third party.
3.5. You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including without limitation, any notice sent to You by any person or entity claiming that any Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act (“DMCA”) and any other notices; and (d) maintain appropriate security, protection, and backup copies of the Content, which may include Your use of additional encryption technology to protect the Content from unauthorized access. Wowza will have no liability of any kind as a result of the deletion, correction, destruction or loss of, or damage to or failure to store or encrypt, any Content.
3.6. You will immediately (upon becoming aware) notify Wowza in writing of any unauthorized use of: (a) any Content; (b) any account associated with the Service; or (c) the Service. In the event of any such unauthorized use by any third party that obtained access through You, You will take all steps necessary to immediately terminate such unauthorized use. You will provide Wowza with any cooperation and assistance related to any such unauthorized use as Wowza may reasonably request.
3.7. When using the Service, You may be exposed to content and information from a variety of sources (“Third Party Content”). Such Third Party Content may be inaccurate, offensive, indecent, or objectionable. Wowza is not responsible for any Third Party Content, including the accuracy, usefulness, safety, or intellectual property rights of or relating to any Third Party Content. Wowza does not endorse any Content or Third Party Content or any opinion, recommendation, or advice expressed therein, and Wowza expressly disclaims any and all liability arising from the Content or Third Party Content. YOU HEREBY WAIVE ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST WOWZA WITH RESPECT THERETO, AND WILL INDEMNIFY AND HOLD THE WOWZA PARTIES (AS DEFINED BELOW) AND ITS LICENSORS HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR CONTENT AND USE OF THE SERVICE.
3.8. YOU SPECIFICALLY ACKNOWLEDGE THAT WOWZA IS NOT LIABLE FOR CONTENT OR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
4.1. The fees applicable for the Service (“Fees”) are available within the Service, on the Site, or in Wowza’s then-current published price list. The prices stated for the Service exclude all taxes and charges unless stated otherwise. You’re responsible for and will pay any taxes and all other charges (for example, currency exchange settlements). You will pay all Fees in U.S. Dollars and through a payment type, mechanism, and process approved by Wowza in its sole discretion.
4.2. In addition to any Fees, You may still incur charges incidental to using the Service from Wowza or from third parties; these charges could include, for example, fees for purchasing a hardware device, charges for Internet access, data roaming, and other data transmission charges.
4.3. Notwithstanding anything to the contrary herein, Wowza may suspend or cancel Your access to the Service if You fail to pay (or fail to permit Wowza to collect) all Fees in full and on time, as determined by Wowza in its sole discretion.
4.4. You must be authorized to use the payment method that You provide when You create a billing account. You authorize Wowza to charge You for the Service using Your payment method and for any paid feature of the Service that You choose to sign up for or use while these Terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; (d) on a recurring basis for subscription Services; or (e) in a “threshold” manner, such that we bill and charge Your designated method of payment at any time Your account balance reaches a level we designate. Wowza may bill You simultaneously for more than one of Your prior billing periods. Once You have signed up for a recurring subscription term or once Wowza has informed You that the Service will be provided indefinitely or automatically renewed, We may automatically renew Your Service and charge You for any renewal term.
4.5. You will keep all information in Your billing account current. You can access and modify Your billing account information using the Site. You may change Your payment method to another payment method then-approved by Wowza at any time. If You have a $0 balance due with Wowza and tell Wowza to stop using Your payment method, and Wowza no longer has an approved method of payment on file for You for charges related to the Service, We may cancel Your account or access to the Service. Your notice to Wowza will not affect charges We submit to Your billing account before We reasonably could act on Your request.
4.6. Wowza will notify You in advance, either through the Service or by email to the email address You have most recently provided to Wowza, if We change one or more prices of the Service. If there’s a specific length and price for Your Service offer, that price will remain in force for that time; after that period ends, Your use of the Service will be charged at the new price. If Your Service is on a period basis (for example, monthly) with no specific length, Wowza will notify You of any price change at least 30 days in advance. If You don’t agree to these changes, You must cancel and stop using the Service through a cancellation process then-approved by Wowza no later than fourteen (14) days prior to the conclusion of Your current payment term, whether monthly, yearly, or otherwise. If You cancel, Your Service will end at the end of Your current Service period or, if Wowza bills Your account on a period basis, at the end of the period in which You properly canceled. If You fail to cancel as required, Wowza will have the right to automatically renew the Service for the same term and will charge Your payment information on file with Us commencing on the first day of the renewal term.
4.7. Payments for Fees related to all of Your accounts are due upon invoicing of such amounts by Wowza unless otherwise agreed to by Wowza in writing; this may mean that Wowza will automatically charge Your approved method of payment when Your account for the Service reaches a balance threshold established by Wowza. If payment is not received by Wowza on the due date or if You fail to maintain an approved and valid method of payment on file with Wowza at all times, Your account may be frozen, inaccessible, or cancelled, and all shared links turned off, until all outstanding payments have been received and processed by Wowza. You will settle all outstanding balances in a timely manner and maintain current billing information. If not complied with, Your account may be deactivated; and, Your use of the Service may be terminated, and Your Content may no longer be retrievable.
4.8. Unless We notify You otherwise, if You’re participating in any trial period offer, You must cancel the Service by the end of the trial period to avoid incurring new charges. If You do not cancel Your Service within such time, You authorize Us to charge Your payment method for the Service.
4.9. Except as specifically set forth in this section, all Fees are non-refundable.
4.10. Except as prohibited by law, Wowza may assess a late charge if You do not pay on time. You must pay these late charges when We bill You for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. Wowza may use a third party to collect past due amounts. You will pay for all reasonable costs Wowza incurs to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. Wowza may suspend or cancel Your Service if You fail to pay in full on time.
5. Prohibited Uses. You will not, and will not encourage, assist, or permit any other person or entity to (the following collectively may be referred to as the “Prohibited Uses”):
5.1. Upload to, produce on, or distribute, display, or playback via the Service any Content that violates any law, regulation, treaty, or third party right (including, without limitation, trade secret, intellectual property, privacy, or publicity rights);
5.2. Publish falsehoods or misrepresentations that could damage Wowza or any third party;
5.3. Post, upload, create, or distribute Content that, in Wowza’s sole discretion, is unlawful, obscene, defamatory, libelous, threatening, pornographic, vulgar, harassing, hateful, racially or ethnically offensive; or post, upload, create, or distribute Content that encourages conduct that could be considered a criminal offense, give rise to civil liability, violate any law, or is or could otherwise be harmful, inappropriate, or dangerous;
5.4. Perform any fraudulent activity, including without limitation, impersonate another person or entity, falsely claim an affiliation with any person or entity, or access the Service accounts of others without permission; use the Service in connection with any hardware, software, player, or other system not approved by Wowza, or for which Wowza does not support, or use any Wowza-authorized or Wowza-specific hardware with software or systems not provided by Wowza.
5.5. Misrepresent the source or rights-holder of Content;
5.6. Use the Service for any purpose other than as intended by Wowza including without limitation as the sole repository for your Content;
5.7. Use the Service in any situation in which the failure of the Service to operate, to operate without error or delay, or to fail to preserve Your Content could result in injury, harm, or death to any person or entity;
5.8. Circumvent, disable, or otherwise interfere with security or intellectual property protection-related features of the Service;
5.9. Rent, lease, loan, sell, resell, sublicense, distribute, or otherwise transfer or share the rights provided under these Terms;
5.10. Delete, modify, or obscure indications or notices regarding the copyright or other rights in the Service or in any Content;
5.11. Make unsolicited offers, advertisements, or proposals, or send junk mail or spam related in any way to the Service;
5.12. Use the Service for any illegal purpose, in violation of any law, or to defame, abuse, harass, threaten, stalk or otherwise violate the legal rights of a third party;
5.13. Use or collect information about people who receive the Content that is in any way illegal, violates the rights of such people, or is otherwise prohibited;
5.14. Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Service or any part thereof, including any Material;
5.15. Modify, adapt, translate, or create derivative works based on the Service or the Materials, or on any part thereof;
5.16. Interfere with or damage the operation of the Service or any party’s enjoyment of the Service by any means (as judged in Wowza’s sole discretion);
5.17. Take any action that imposes or may impose, in Wowza’s sole discretion, an unreasonable or disproportionally large burden on Wowza’s or the Service’s infrastructure, or on the Service;
5.18. Store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses, or other harmful or deleterious computer code, files or programs, such as Trojan horses, worms, time bombs, cancelbots, or spyware;
5.19. Access or attempt to access Wowza’s other accounts, computer systems, or networks not covered by these Terms, through password mining or any other means;
5.20. Use the Service or any third-party service(s) to export or re-export Content, the Service, or Materials in violation of applicable law and regulation, including without limitation applicable provisions of the U.S. Export Administration Act and its related rules and regulations; or
5.21. Use, or permit third parties to use the Service in any situation in which the failure of the Service to operate, or to operate without error or delay, could result in injury, harm, or death to any person or entity.
6. Termination; Violations.
6.1. Wowza may, in its sole discretion, for any or no reason, and without penalty suspend or terminate any account (or any part thereof) You may have with Wowza, or Your use of or access to the Service, or remove or discard all or any part of Your account, user profile, and any Content, at any time and without providing prior notice to You. Wowza will not be liable to You or to any third party for any such termination, suspension, or removal or deletion of Content regardless of the reason for such action. Wowza may refer any suspected fraudulent, abusive, or illegal activity may to appropriate law enforcement authorities. These remedies are in addition to any other remedies Wowza may have at law or in equity. If Wowza terminates the Services for convenience prior to the completion of any particular subscription period, Your sole remedy is a pro-rata refund of the unused portion of the purchase price paid for the unavailable Service. Usage-based charges are not refundable for any reason. WOWZA RESERVES THE RIGHT TO ALTER, REMOVE OR DISCONTINUE ANY PORTION OF THE SERVICE OR THE CONTENT ON THE SERVICE OR TO SUSPEND OR TERMINATE YOUR USE IN ANY WAY, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION; AND, WOWZA WILL NOT BE LIABLE IN ANY WAY FOR POSSIBLE CONSEQUENCES OF SUCH CHANGES.
6.2. Wowza does not permit copyright infringing activities on the Service, and may terminate access to the Service, and remove any Content or other content submitted by any users.
6.3. Your only remedy with respect to any dissatisfaction with (i) the Service; (ii) any term of these Terms; (iii) any policy or practice of Wowza in operating the Service, or (iv) any Content or information transmitted through the Service, is to terminate these Terms and Your account.
6.4. You may terminate these Terms at any time by discontinuing use of any and all parts of the Service and providing Wowza written notice of such termination. For clarity, notwithstanding anything to the contrary herein, no Fees or other amounts payable by You hereunder are refundable upon termination of Your account with Wowza.
6.5. The following provisions survive the termination of these Terms: 1.2, 1.3, 3.3, 3.6, 3.7, 4 (with respect to any amounts owed prior to termination), 6.2, 10, 11, 12 13, 16 17, 18, 19, 20, and 23.
6.6. Upon suspension or termination of Your account with Wowza or of your access to the Service, Wowza may permanently and irretrievably delete all Content associated with You or Your account(s) with Wowza.
7. Copyright Infringement Notification.
7.1. Wowza does not tolerate behavior or Content that infringes any copyright or other intellectual property rights, or otherwise violates these Terms, and will respond to notices of alleged copyright infringement that comply with the DMCA and are properly provided to Us. Wowza reserves the right to make unavailable, prohibit, delete, or disable any Content (and Your and Your viewers’ Access to such Content) alleged to violate these Terms and to terminate repeat alleged infringers. Our designated agent for notice of alleged copyright infringement is:
Wowza Media Systems, LLC
523 Park Point Drive, Suite 300
Golden, Colorado 80401 USA
7.2. The DMCA specifies that all infringement claims must be in writing (either electronic mail or paper letter) and must include the following:
7.2.1. A physical or electronic signature of the copyright holder or a person authorized to act on his or her behalf;
7.2.2. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
7.2.3. A description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit Wowza to locate the material;
7.2.4. Information reasonably sufficient to permit Wowza to contact You, such as an address, telephone number, and, if available, an electronic mail address;
7.2.5. A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
7.2.6. 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.
7.3. Only DMCA notices should go to the designated copyright agent; any other comments, requests, or other communications should be directed to Wowza customer service.
8. Content Stored in the United States. The Service is provided from the United States. By using and accessing the Service, You understand and consent to the storage and processing of the Content in the United States. In addition, Wowza reserves the right to store and process Content outside of the United States.
10. Privacy; Publicity.
10.3. Wowza may use your name, organization name, organization logo, and other identifying information to identify You as a Wowza customer, Service user, or both. Such use of Your name will be without royalty or other obligation by Wowza to You.
11.1. WOWZA, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE PAST AND PRESENT OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “WOWZA PARTIES”) PROVIDE THE SERVICE AND CONTENT “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WOWZA PARTIES MAKE NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION: (A) ANY REPRESENTATION OR WARRANTY: (I) RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE; (II) RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS (OR THE LACK THEREOF) IN THE SERVICE, OR ANY PART THEREOF; (III) THAT THE SERVICE, OR THE RECORDING, SAVING, OR DELIVERY OF CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS; (IV) THAT THE CONTENT WILL BE RECORDED, SECURE, OR NOT OTHERWISE LOST, NOT PRESERVED, DELETED, MADE INACCESSIBLE, OR DAMAGED; (V) RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE; (VI) RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS OF THE WOWZA PARTIES; AND (VII) THAT THE SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON; OR (B) ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH JURISDICTIONS, THE FORGOING EXCLUSION ARE LIMITED AS REQUIRED BY LAW.
11.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WOWZA OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY. YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING OF INFORMATION, MATERIALS, CONTENT, OR DATA THROUGH THE SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD-PARTY SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA OR CONTENT THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
12. Limitation of Liability.
12.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE WOWZA PARTIES OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OF CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF WOWZA HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, INCLUDING THOSE DAMAGES ARISING OUT OF: (A) THE SERVICE, YOUR ACCESS, USE, OR INABILITY TO USE THE SERVICE; (B) ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE (INCLUDING LOSS PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE SERVICE); (C) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE, (D) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL IDENTIFIABLE INFORMATION STORED THEREIN, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY.
12.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE WOWZA PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, CONTENT, YOUR USE OF THE SERVICE, OR YOUR INTERACTION WITH OTHER SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE NET AMOUNT RECEIVED BY WOWZA, IF ANY, FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM ARISING UNDER THESE TERMS, OR U.S. FIVE DOLLARS ($5.00), WHICHEVER IS GREATER.
12.3. THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
13.1. You will indemnify, defend and hold harmless the Wowza Parties from and against any losses, claims, damages, liabilities, including legal fees and expenses, arising out of or related to: (a) any claim due to or arising out of Your violation of these Terms, including but not limited to a claim arising out of a breach of Your representations or warranties made hereunder; (b) Your use or misuse of or access to the Service; (c) Your violation of any law, regulation or third party right, including without limitation any copyright, property, or privacy right; (d) any claim that You or Your Content caused damage to a third party; (e) any other of Your activities or omissions; or, (f) Content delivered to, manipulated by, or streamed from Your account.
13.2. Wowza reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Wowza, and You will cooperate with Wowza’s defense of these claims.
14. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned or transferred by Wowza in whole or in part without restriction.
15. Waiver, Severability, Interpretation. The failure to require performance of any provision will not affect Wowza’s right to require performance at any time thereafter, nor will a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of these Terms is found to be unenforceable, such portion will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of these Terms will remain in full force and effect. These Terms will be deemed to have been jointly drafted by You and Wowza.
16. Notice. Wowza may provide You with notices, including those regarding changes to Wowza’s terms and conditions, by email, regular mail, or postings on the Service or the Site. Notices emailed to You will be deemed given and received when the email is sent. If You don’t consent to receive notices electronically, You must stop using the Service. Alternatively, We may give You legal notice by mail to a postal address, if provided by You through the Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Service or the Site is deemed given upon its posting. You may provide legal notices to Us via email to LegalNotices@wowza.com with a duplicate copy sent via registered mail, return receipt requested, to the following address: Legal Department, Wowza Media Systems, 523 Park Point Drive, Suite 300, Golden, Colorado 80401 USA. Any such notice from You, in either case, must specifically reference that it is a notice given under these Terms.
17. Choice of Law; Forum. These Terms are governed and construed in accordance with the laws of the State of Colorado, excluding its conflicts of law rules. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
17.1. If You reside in the United States, any dispute arising out of or relating to these Terms or Your access to or use of the Service will be subject to the exclusive jurisdiction of the state and federal courts located within Denver County in the State of Colorado, and You hereby submit to the personal jurisdiction of such courts.
17.2. If You do not reside in the United States, any dispute arising out of or relating to these Terms or Your access to or use of the Service will be resolved by binding arbitration administered in Denver, Colorado.
17.3. YOU MUST COMMENCE ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18. Cooperation. You will provide Wowza with any reasonably requested cooperation or assistance related to these Terms, Your use of the Service, or Wowza’s delivery of the Service to You or to third parties.
19. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
20. Entire Agreement. This is the entire agreement between You and Wowza relating to the subject matter herein (including external materials incorporated by reference) and will not be modified except in writing, signed by both parties, or by a change to these Terms or Policies made by Wowza as set forth above. These Terms supersede any prior contract or oral or written statements regarding Your use of the Service.
21. No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
22. No Third Party Beneficiaries. The parties specifically disavow any desire or intention to create a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, will have any rights hereunder nor any right of enforcement hereof.
23. Consent to Electronic Communications and Solicitation. By registering with Wowza or using the Service, You understand that We may send You communications or data regarding the Services, including but not limited to (a) notices about Your use of the Services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Wowza’s products and services, via electronic mail. We give You the opportunity to opt-out of receiving promotional electronic mail from Us by following the opt-out instructions provided in the message.
24. Force Majeure. We will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Our reasonable control.
25. Patents. The Services, or portions thereof, may represent patented or patent-pending Wowza technology. If you have questions about Wowza patents, please refer to www.wowza.com/legal.