Creator Terms of Service
Last Updated: May 28, 2021
These Creator Terms of Service (“Terms”) govern your use as a live stream host (“Creator”) of the Hovercast platform provided by Hovercast, Inc. (“Hovercast”, “we”, “us”, or “our”), including our websites (hovercast.com and hovercast.live), and the products and services we provide (collectively, the websites, products, and services referred to as our “Service”).
These Terms apply solely to Creators. Your use of the Service as a Creator is also subject to our current Acceptable Use Policy. Any use by you of the Service other than as a Creator is governed by the Terms of Service (“User Terms”).
PLEASE READ THESE TERMS CAREFULLY. By using the Service as a Creator, you represent and warrant that you have read, understand, and agree to be bound by these Terms. If you do not agree, do not access or use the Service as a Creator.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION AGREEMENT IN SECTION 19. EXCEPT AS DESCRIBED IN SECTION 19: (1) YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION; (2) YOU MAY PURSUE CLAIMS AND SEEK RELIEF AGAINST US ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (3) YOU WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THIS INCLUDES CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE “LAST UPDATED” DATE AT THE TOP OF THESE TERMS.
ALPHA RELEASE NOTICE: This is the alpha release of the Service (“Alpha Release”), which is an early release that we are making available to you prior to the general commercial release of the Service so that we can test and improve the Service. You are not required to use the Alpha Release, but if you elect to use it, you do so under the following terms:
- Your right to use the Alpha Release may be limited in time.
- We may request or require that you provide suggestions, feedback, or data regarding your use of the Alpha Release, which you grant Hovercast the right to use, dissect and repurpose in its sole discretion.
- You specifically acknowledge that the Alpha Release is only released for testing and improvement purposes, in particular to provide Hovercast with feedback on the quality and usability of said Alpha Release, and therefore contains errors, is not final and may create incompatibilities or damage to your computer, data, and/or software. If you decide to use the Alpha Release, you shall only use it in compliance with its purposes, i.e. for testing and improvement purposes and in any case not on a system or for purposes where the malfunction of the Alpha Release can cause any kind of damage. In particular, maintain full backups of any system that you choose to access the Alpha Release on.
Table of Contents
- Creator Account
- Access to the Service
- Accepting Requests and Boosts
- Hovercast Clips
- Fees and Payment
- Creator Content
- Additional Terms
- Copyright Policy
- Third Party Content and Interactions
- Business Relationship with Hovercast
- Termination and Reservation of Rights
- Disclaimers and Limitations on our Liability
- Arbitration Agreement and Waiver of Certain Rights
- Other Provisions
- Changes to these Terms
- Contact Us
1. Creator Account
- In order to use certain features of the Service, you must register for a Creator account. By registering, you agree to provide true, accurate, current, and complete information about yourself as prompted by our registration form, as well as any other information reasonably requested by us (collectively, “Registration Data”), and maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you do not do so or we reasonably believe that you have not done so, we have the right to suspend or terminate your account and your use of the Service. You agree not to create an account using a false identity or providing false information, on behalf of another person (except as outlined below for a parent or legal guardian and Organizations), or if you (and your parent or legal guardian, or an Organization, if applicable) have previously been removed or banned from the Service. You are responsible for maintaining the confidentiality of your account information, including your username and password. You are responsible for all activities that occur on or in connection with your account and you agree to notify us immediately of any unauthorized access or use of your account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your account.
- Creator Age 16 or Older: Creators who are at least 16 years old may register directly. By registering, you represent and warrant that: (A) you are at least 16 years old (and, if between 16 and 18 years old, are registering with the supervision and with the consent of your parent or legal guardian, who also agrees to these Terms); (B) you are of legal age to form a binding contract; (C) you are (and if you are between 16 and 18 years old, your parent or legal guardian is) not barred from using the Service under the laws of the United States, your place of residence (and if you are between 16 and 18 years old, the place of residence of your parent or legal guardian), or any other applicable jurisdiction; and (D) you are (and if you are between 16 and 18 years old, your parent or legal guardian is) responsible for complying with all applicable laws and regulations relating to Creator’s participation on the Service and will fully indemnify the Hovercast Parties (defined below) for any failure to do so.
- Parent or Legal Guardian of Creator, under age 16: Creators who are under 16 years old, may register only through a parent or legal guardian who, by registering, represents and warrants that: (A) he or she is the parent or legal guardian of the Creator and agrees to these Terms; (B) neither the parent or legal guardian nor the Creator is barred from using the Service under the laws of the United States, the place of residence of the parent, legal guardian, or Creator, or any other applicable jurisdiction; and (C) he or she is responsible for complying with all applicable laws and regulations relating to Creator’s participation on the Service and will fully indemnify the Hovercast Parties for any failure to do so.
- Organizations: A management company, manager, agency, agent, publicist, or other individual or organization (each, an “Organization”) may register a Creator (“Affiliated Creator”). By registering, the Organization represents and warrants for itself and each Affiliated Creator that: (A) Organization is the authorized representative of the Affiliated Creator (and, if the Affiliated Creator is below the age of 18, is registering with any consent required of the Affiliated Creator’s parent or legal guardian as set forth in Section 1(b) and agrees to these Terms; (B) neither the Organization nor the Affiliated Creator is barred from using the Service under the laws of the United States, the place of residence of the Organization or any Affiliated Creator, or any other applicable jurisdiction; and (C) Organization is responsible for complying with all applicable laws and regulations relating to Affiliated Creator’s participation on the Service under these Terms and will fully indemnify the Hovercast Parties for any failure to do so. To register an Affiliated Creator as an Organization, please contact talentsuccess@Hovercast.com.
- National College Athletic Association (“NCAA”) and Other Amateur Organizations: If you are or may become subject to NCAA rules and regulations or those of any other association, group, authority or organization, you represent and warrant that you have checked the rules and regulations to verify and confirm that your participation on the Service does not or will not affect your current or future eligibility with respect to any such association, group, authority or organization.
- Representations and Warranties: You represent and warrant that:
- You (and any Service account that you created or control) have not been previously banned or removed from the Service for any reason.
- You have not been prohibited from using or accessing any aspect of the Service by us or pursuant to any applicable law or regulation.
- You will comply with all applicable terms of any third party payment provider we select, and you are not on a prohibited list of that payment provider.
- If you include an animal in any stream or video, you will cause no harm to the animal and will comply with all applicable laws and regulations.
- You are not a convicted sex offender.
- Export Control: You may not use, export, import, or transfer any part of the Service except as authorized by United States law, the laws of the jurisdiction in which you use or access the Service, or any other applicable laws. In particular, but without limitation, no part of the Service may be exported or re-exported: (i) into any country embargoed by the U.S.; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Service, you represent and warrant that: (x) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (y) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by law. You acknowledge and agree that products, services, and technology provided by Hovercast are subject to the export control laws and regulations of the U.S. You will comply with those laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer Hovercast products, services, or technology, either directly or indirectly, to any country in violation of those laws and regulations.
3. Access to the Service
- License. Subject to these Terms, Hovercast grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service.
- Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) except as expressly stated herein, you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof.
- Modification. Hovercast reserves the right, at any time, to modify, suspend, or discontinue the Service (in whole or in part) with or without notice to you. You agree that Hovercast will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Service or any part thereof.
- No Support or Maintenance. You acknowledge and agree that Hovercast will have no obligation to provide you with any support or maintenance in connection with the Service.
- Ownership. Excluding any User Content (defined below) that you may provide, you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Service and its content are owned by Hovercast or its suppliers. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 3(a). Hovercast and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
4. Accepting Requests and Boosts
- Through the Service, users of the Service (“Users”) may submit a request for you to complete an action, answer a question, or read a comment (each a “Request”). Users may also add donations (each a “Boost”) to a Request.
- You may accept, ignore, or decline a Request. If you accept a Request, your response to the Request is your responsibility and at your discretion, subject to these Terms; however Users are usually happiest when at least the majority of their Request is followed. If you accept a Request with one or more Boosts, we will pay you a percentage of the Boosts as set forth in Section 6.
- We reserve the right, in our sole discretion, to cancel any Request from a User. No payment will be made to you for any ignored, declined, or cancelled Request with one or more Boosts.
5. Hovercast Clips
- If you enable Clips (defined below) on your account, we may in our sole discretion (but have no obligation to) send short a video clip (“Clip”) of an accepted Request to the User that submitted the Request and any User that added a Boost to the Request. By enabling Clips, you agree to grant to any User receiving a Clip a license to use the Clip as set forth in Section 7(b).
- You represent and warrant that: (i) Clips are not, and are not intended to be, covered by any guild, union, collective bargaining, management, agency, or similar agreement and there will be no residual or any other type of payment due from Hovercast to you, to any third party, guild, union, management, or agent, or pursuant to any collective bargaining agreement, in connection with any Clip, payment from us to you, or the Service; (ii) Hovercast is not responsible for, and will not make any deduction to payments made to you for any fees, commissions, costs, expenses, or payments of any kind to or with respect to any third party, including any manager, agent, attorney, representative, or service provider, in connection with any revenue earned by or payments made to you in connection with the Service; and (iii) Hovercast is not responsible for any contributions, payments, taxes, or deductions for Social Security, retirement benefits, unemployment insurance, annuities, or pension or welfare fund payments required by law or any labor union, or any withholding or income taxes.
6. Fees and Payment
- Boosts and Tips: Subject to these Terms, we will pay you 90% of the Boosts actually received by Hovercast for each Request that you accepted through the Service after deducting the fees, costs, and expenses of the payment provider. In addition, if we permit a User to designate an additional amount as a “tip”, we will pay you 90% of any amount paid by a User via the Service as a “tip” after deducting the fees, costs, and expenses of the payment provider.
- Payment: You agree to register with the third party payment provider selected by Hovercast, which Hovercast may change in its sole discretion. You may not use a payment provider other than the one selected by Hovercast. You will provide the payment provider any information required in order to receive payments via the payment provider, e.g., information about the bank account that you own at a regulated financial institution. Any payments due to you from Hovercast will be made via the payment provider. If available, you may transfer funds from your Hovercast account to your bank account by submitting a payment request. Your request will be processed by the payment provider. If not available, Hovercast will submit the payment request, for processing by the payment provider. In addition, Hovercast may, in its sole discretion, transfer funds from your Hovercast account to your bank account especially in the case of account inactivity. If you do not provide the payment provider with all required information, you may not be able to receive the payments due to you. Hovercast will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive payments as a result of your failure to provide such information. You acknowledge and agree that Hovercast does not operate, own, or control the payment provider; and your use of any payment provider is subject to the terms and privacy policies of that payment provider. You agree that we are not responsible for any delay, failure, damage, or liability caused by a payment provider, any other third party, a force majeure, or your failure to timely or properly set up an account with the payment provider or otherwise provide requested information for payment. Unless otherwise agreed by Hovercast in writing, you acknowledge and agree that you are solely responsible for any other fees, costs, and expenses, including with respect to your bank account and foreign exchange fees. Notwithstanding anything to the contrary contained in these Terms, if Hovercast, in its sole discretion, believes that any fraud, money laundering, or other violation of law or regulation is taking place on or in connection with the Service, you acknowledge and agree that we may withhold, delay, or seek repayment of any payments we believe, in our sole discretion, are related to the violation.
- Currency: Payments via the payment provider are in U.S. dollars unless the payment provider permits you to choose another currency and you do so.
- Fundraising: If you identify any entity on your channel or elsewhere on the Service as a charitable organization or a recipient of any funds that you are raising (each, a “Charity”), you: (i) represent and warrant that you will comply with all applicable laws and regulations relating to that identification or the Charity, including making disclosures, registering, or entering into any agreement, such as a commercial co-venturer agreement; (ii) acknowledge and agree that we have the right in our sole discretion to reject your identification or the Charity; (iii) represent and warrant that the Charity is and will remain in good standing at all times the identification is used, that within 48 hours of your receipt of our request, you will provide us with written evidence of the Charity’s good standing and charitable status in all applicable jurisdictions, and that you will promptly remove the identification if the Charity ceases to be in good standing; (iv) represent and warrant that you will be responsible for making any payment to the Charity (unless we expressly agree in writing in advance to do so on your behalf and in satisfaction of our payment obligations to you under these Terms); and (v) represent and warrant that you have all rights necessary to authorize use of the Charity’s name and logo in connection with (and on) the Service, in the identification, and in any social and other media. You further acknowledge and agree that we may add a statement to your channel disclaiming a connection between Hovercast and the Charity, as we determine in our sole discretion.
7. Creator Content
- License Grant to Creator Content: Our Service allows you to upload, submit, store, send, transmit, approve, and receive streams, videos, content and data, including your Clips (“Creator Content”). When you upload, submit, store, send, transmit approve, or receive Creator Content to or through the Service, you grant to us a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license in any and all manner and media, whether now known or hereinafter invented or devised (including social media channels and third party websites and platforms), to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes we make so that Creator Content works better with the Service or otherwise), and to use your Creator Content for the purposes of operating and providing the Service, to develop and improve our products and services, and to advertise, market, and promote the Service, products, and services, and you agree that such Creator Content may, in Hovercast’s sole discretion, be used, including performed or displayed, in connection with any other elements, materials, copyrights, rights of publicity, or copyrighted materials. Please remember that third parties (including Users) may search for and see any Creator Content you submit to public areas of the Service. You agree that we may display advertising with or in connection with your Creator Content. You further acknowledge and agree that Hovercast has no obligation to you in connection with any advertising displayed on or in connection with the Service (including no obligation to share any revenue received by Hovercast as a result of any such advertising).
- License Grant to Users: For each Clip, you hereby grant to the Users a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, and perpetual license to use, reproduce, distribute, and publicly display the Clip, in each case, solely in accordance with the User Terms, in any and all media, whether now known or hereafter invented or devised (including social media channels and third party websites and platforms).
- Right to Remove Clips: You acknowledge and agree that we cannot restrict the use of your Clips by Users or by any third party with whom they have already been shared and we have no obligation to remove those uses (including from social media channels or third party websites or platforms). If we do seek to remove a Clip from a social media channel or third party website or platform, we may notify you of our intent to do so. As the owner of the copyright in your Creator Content, you hereby authorize Hovercast to act as your agent in order to submit any DMCA notice or other demand with respect to your Clips. You will promptly notify us if you learn that any Clip is being used in violation of the User Terms. We will reasonably cooperate with your efforts to address the violation. However, you acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to use of the Clip for any reason, including if the use exceeds the license in Section 7(b) or otherwise violates the User Terms.
- Licenses: You may not sell, resell, commercialize, or encumber your rights in any Hovercast offering, including creating a non-fungible token (“NFT”) from any Hovercast offering (including Clips) except as agreed by Hovercast in writing. Please note that the licenses granted in this Section 7 are fully-paid and royalty free, meaning we do not owe you anything in connection with the use of your Creator Content, by us, Users, or third parties, other than the payment set forth in Section 6. We may exercise our rights under this license anywhere in the universe. We may sublicense our rights as needed to provide and promote the Service or otherwise in accordance with these Terms, and Users may sublicense their rights subject to the User Terms. Finally, the licenses granted in this Section 6 are perpetual, meaning that the rights granted under these licenses continue even after you stop using the Service.
- Creator Content Representations and Warranties: You represent and warrant that:
- you own all rights in and to your Creator Content and Feedback (defined below) and that you have the right to grant the rights described in these Terms;
- you have paid and will pay in full any fees, royalties, or other payments that are due or may become due in connection with any use of your Creator Content and Feedback by us, Users, or third parties as described in these Terms;
- your agreement to, and provision of services under, these Terms does not violate any agreement that you may have with any third party;
- your Creator Content and Feedback does not infringe, misappropriate, or otherwise use without necessary authorization, any intellectual property, privacy, publicity, moral, or other rights of any third party, or violate any law, regulation, or court order;
- you will not contact, respond to, or communicate with any User that you meet on or through the Service, except as expressly permitted through the Service;
- you will not provide your contact information to any User or send merchandise or anything else to a User other than as permitted by these Terms;
- you will not edit, change, modify, or remove the watermark from any Clip or assist or encourage any third party to do so; and
- you will not ask us for permission or to assist you with the actions prohibited by Sections 6(e)(v) through 6(e)(vii).
- Treatment of Creator Content: Any Creator Content is non-confidential, non-proprietary, and must not contain or include any information which you do not have the right to disclose or that you do not wish to be disclosed. We will not be responsible or liable for any use or disclosure of Creator Content, including any personal information included in that Creator Content. You acknowledge and agree that your relationship with us is not a confidential, fiduciary, joint-venture, employer/employee, agency, or other type of special relationship, and that your decision to participate in the Service or submit any Creator Content does not place us in a position that is any different from the position held by members of the general public, including with regard to your Creator Content. None of your Creator Content will be subject to any obligation of confidence by us, Users, or third parties, and we will not be liable or responsible for any use or disclosure of any Creator Content.
- Refusal and Removal of Creator Content: We may refuse to accept or transmit Creator Content for any reason without notice to you. We may remove Creator Content from the Service for any reason without notice to you.
- Cancellation of Account: If you cancel your account, you may, on at least three (3) business days’ advance written notice to us, request that we no longer include your Clips on the Service and that we not make any new public use of them. As noted in Section 6(c), we have no obligation as to any use of your Clips by Users or by any third party with whom they have already been shared (including from social media channels or third party websites or platforms).
- Other than Creator Content, we or our licensors own all right, title, and interest in and to: (i) the Service and the “look and feel” of the Service, including all software, ideas, processes, data, text, media, and other content available on the Service (individually, and collectively, “Hovercast Content”); and (ii) our trademarks, logos, and brand elements (“Marks”). Our Service, Hovercast Content, and Marks are each protected under U.S. and international laws. You may not duplicate, copy, or reuse any portion of Hovercast Content or use the Marks without our prior express written consent. You acknowledge and agree that each request or message from a User is User Content (as defined in the User Terms) owned by the User who created it.
- Hovercast desires to avoid the possibility of misunderstandings if a project developed by us, our employees, or our contractors might seem similar to material submitted to us by you or a third party. To the extent you submit any ideas, suggestions, proposals, plans, or other materials related to our business (individually, and collectively, “Feedback”), you acknowledge and agree that you are submitting that Feedback at your own risk and that Hovercast has no obligation (including of confidentiality or privacy) with respect to your Feedback, and you grant to Hovercast a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised, to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes), and otherwise use and exploit in any manner (including commercially), any and all Feedback.
- You hereby waive any and all moral rights or “droit moral” that you may have in Creator Content or Feedback, and you represent and warrant that no third party has any moral, “droit moral” or other rights in the Creator Content or Feedback.
9. Additional Terms
Some products or services offered through the Service may have additional terms and conditions (“Additional Terms”). If Additional Terms apply, we will make them available for you to read in connection with that product or service. By using that product or service, you agree to the Additional Terms. To the extent that the Additional Terms conflict with any of these Terms, these Terms will govern unless the Additional Terms say that all or some of these Terms don’t apply.
10. Copyright Policy
- Digital Millennium Copyright Act Notice: We respond to notices of alleged copyright infringement and terminate access to the Service for repeat infringers. If you believe that your material has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
- your address, telephone number, and email address;
- a description of the work that you claim is being infringed;
- a description of the material that you claim is infringing and are requesting be removed along with information about where it is located;
- 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”;
- an electronic or physical signature of the copyright owner (or a person authorized to act for the copyright owner); and
- a statement by you, made under penalty of perjury, that the information you are providing is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
2000 W. Addison Street #110
Chicago, IL 60618
If you do not follow these requirements, your notice may not be valid. Please note, only notices of alleged copyright infringement should be sent to our Copyright Agent.
Please note that any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
- Termination Policy: If we determine that you are a repeat infringer, we may terminate your access to the Service, remove or ban you (and any Service account you created or control), and take other appropriate action in our sole discretion.
12. Third Party Content and Interactions
Our Service may contain features and functionalities that link to or provide you with access to third party content, that is completely independent of Hovercast, including streams, videos, Clips, websites, platforms, directories, servers, networks, systems, information, databases, applications, software, programs, products or services, and the Internet in general. Your interactions with third parties, including Users, on or through the Service, are solely between you and the third party; however, Hovercast may, in its sole discretion, intercede and you will reasonably cooperate with Hovercast if it does so. You acknowledge and agree that Hovercast will not be responsible for any damages, losses, costs, expenses, or liabilities incurred as the result of such interactions, including any Requests or User Content from Users. You agree to contact Users about matters relating to the Service only through the Service. You hereby release each Hovercast Party (defined below) from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such interactions or the Service. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY OTHER SIMILAR APPLICABLE STATE STATUTE), WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
13. Business Relationship with Hovercast
- You and Hovercast agree and declare you and Hovercast are in a direct business relationship and the relationship between the parties, including these Terms, is solely an independent contractor relationship. It is the parties’ express intent that their relationship be interpreted and held to be that of independent contractor for all purposes. You acknowledge and agree that you are not a joint venturer, franchisee, partner, agent, or employee of Hovercast, and will not represent yourself as such. As an independent contractor using our platform to provide streaming content to Users, you are solely and exclusively responsible for determining the manner, method, details, and means of your performance under these Terms and you acknowledge and agree that we do not control those elements of your performance. You also retain the option to accept, ignore, or decline any User request. We have no right to, and will not, control the manner or determine the method of accomplishing your performance. You represent and warrant that you are customarily engaged in an independently established trade, occupation, or business.
- You represent and warrant that as between Hovercast and you (whether a Creator, parent or legal guardian of a Creator, an Organization, Affiliated Creator, Hovercast Partner, or otherwise), you assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for Social Security, retirement or other benefits, healthcare insurance, unemployment insurance, annuities, pension and welfare fund payments required by law, regulation, or any labor union, and all withholding and income taxes, and make any reports required as a result of participation on the Service under these Terms.
- You will use your own equipment to perform your obligations under these Terms.
- You are solely responsible for making any disclosure required by any applicable law, regulation, court order or any agreement you may have with any third parties to any person or entity regarding your performance under these Terms.
- Your relationship with Hovercast is non-exclusive, meaning that you may provide similar services to third parties, including Hovercast’s competitors, and you may engage in other business or employment activities. Similarly, we can and do engage third parties to provide services similar to those that you may provide under these Terms.
15. Termination and Reservation of Rights
You may cancel your account at any time by contacting a member of the Hovercast team at support@Hovercast.com. We reserve the right to terminate access to the Service to any person, including you, at any time, for any reason, in our sole discretion. If you violate any of these Terms, your permission to use the Service automatically terminates.
You agree to indemnify, defend, and hold harmless Hovercast and its parents, subsidiaries, affiliates, officers, employees, directors, shareholders, agents, partners, and licensors (each, a “Hovercast Party, “ and collectively, “Hovercast Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature, arising from, out of, in connection with, or relating to: (a) your access to or use of the Service, (b) your violation of these Terms, (c) your violation of applicable laws or regulations, (d) your negligence, misconduct, or fraud, (e) any action or inaction by you or anyone acting on your behalf; (f) any Organization or Affiliated Creator; (g) any Charity; (h) your status as a parent or legal guardian of a Creator; (i) Creator Content; (j) Feedback; (j) your eligibility with the NCAA or any other association, group, authority, or organization referenced in Section 8(b); or (k) your participation in the Referral Program. Hovercast may select counsel and control the defense of any claim that you are indemnifying. You will reasonably cooperate with us in connection with any claim.
17. Disclaimers and Limitations on our Liability
- YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HOVERCAST PARTIES DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE HOVERCAST PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
- IN PARTICULAR, THE HOVERCAST PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICE OR THE CONTENT OF ANY SOCIAL MEDIA PLATFORM OR THIRD PARTY WEBSITE LINKED TO OR INTEGRATED WITH THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE HOVERCAST PARTIES WILL HAVE NO LIABILITY FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY, PROPERTY DAMAGE, OR OTHER HARM RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS, ANY PERSONAL INFORMATION, OR USER DATA; (IV) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED ON OR THROUGH THE SERVICE; OR (VI) ANY DAMAGES, LOSSES, COSTS, EXPENSES, OR LIABILITIES OF ANY KIND INCURRED AS A RESULT OF ANY CONTENT OR THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SERVICE.
- YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICE, INCLUDING A USER REQUEST, IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES, LOSSES, COSTS, EXPENSES, OR LIABILITIES ARISING FROM OR IN CONNECTION WITH DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE, INCLUDING THROUGH A CLIP, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE BY US.
- YOU ACKNOWLEDGE AND AGREE THAT WHEN USING THE SERVICE, YOU WILL BE EXPOSED TO CONTENT FROM A VARIETY OF SOURCES, AND THAT HOVERCAST IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, SAFETY, LEGALITY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO ANY SUCH CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OBJECTIONABLE, OR HARASSING, AND YOU AGREE TO WAIVE, AND DO HEREBY WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST ANY HOVERCAST PARTY WITH RESPECT THERETO.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY HOVERCAST PARTY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS, ARISING FROM OR RELATED TO THESE TERMS OR YOUR ACCESS TO OR USE OF, OR INABILITY TO USE, THE SERVICE, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT HOVERCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM OR RELATED TO THESE TERMS OR YOUR ACCESS TO OR USE OF, OR INABILITY TO USE, THE SERVICE, INCLUDING FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY HOVERCAST FROM YOU DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
- CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THOSE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- YOU AGREE THAT THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HOVERCAST AND YOU.
18. Arbitration Agreement and Waiver of Certain Rights
- Arbitration: YOU AND HOVERCAST AGREE TO RESOLVE ANY DISPUTES BETWEEN YOU AND HOVERCAST THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF THROUGH COURT PROCEEDINGS. YOU AND HOVERCAST EACH HEREBY WAIVE ANY RIGHT TO A JURY TRIAL OF ANY CONTROVERSY, CLAIM, COUNTERCLAIM, OR OTHER DISPUTE ARISING BETWEEN YOU AND HOVERCAST RELATING TO THESE TERMS OR THE SERVICE (EACH A “CLAIM,” AND COLLECTIVELY, “CLAIMS”). Any Claim will be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
- Costs and Fees: If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Hovercast will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
- No Preclusions: This arbitration agreement does not preclude you or Hovercast from seeking action by federal, state, or local government agencies. You and Hovercast each also have the right to bring any qualifying Claim in small claims court. In addition, you and Hovercast each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with these Terms or a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
- No Class Representative or Private Attorney General: Each of you and Hovercast agree that with respect to any Claim, neither may: (i) act as a class representative or private attorney general; or (ii) participate as a member of a class of claimants. You agree that no Claim may be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or Hovercast). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
- Severability/No Waiver/Survival: If any provision of this Section 18 is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this Section 18 will continue in full force and effect. No waiver of any provision of this Section 18 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of these Terms. This Section 18 will survive the termination of your relationship with Hovercast.
- 30-Day Opt-Out Right: You have the right to opt out of the provisions of this Arbitration Agreement by sending, within 30 days after first becoming subject to this Arbitration Agreement, written notice of your decision to opt out to the following address: Hovercast, c/o Legal Department, 2000 W. Addison Street #110, Chicago, IL 60618. Your notice must include your name and address, any usernames, each email address you have used to set up an account on the Service, and an unequivocal statement that you want to opt out of this Arbitration Agreement. You agree that if you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- LIMITATIONS: THIS SECTION 18 LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN CERTAIN COURT ACTIONS, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. IN ADDITION, OTHER RIGHTS THAT YOU OR HOVERCAST WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
19. Other Provisions
- Choice of Law. These Terms will be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to any conflict of laws rules or provisions.
- Jurisdiction. You agree that any action of whatever nature arising from or relating to these Terms or the Service will be filed only in the state or federal courts located in Chicago, Illinois. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
- Entire Agreement. These Terms (together with any Additional Terms applicable to specific products and services that you use) make up the entire agreement between you and Hovercast and supersede any prior agreements.
- Severability: If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision.
- No Waiver or Amendment: The failure by Hovercast to enforce any right or provision of these Terms will not prevent Hovercast from enforcing such right or provision in the future and will not be deemed to modify these Terms.
- Assignment: Hovercast may, at any time, assign its rights and obligations under these Terms, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law.
- Force Majeure: Under no circumstances will any Hovercast Party be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, epidemics, etc.), unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, or any other event or cause beyond the reasonable control of any Hovercast Party.
- Miscellaneous: The term “including” in these Terms will be interpreted broadly and will mean “including, without limitation.” Titles are for convenience only and will not be considered when interpreting these Terms.
20. Changes to these Terms
We may change these Terms. If we do, we will post the revised Terms on the Service and update the “Last Updated” date at the top of these Terms. The revised Terms will be effective immediately if you accept them (for example, by agreeing when you create an account or login to an existing account, or using or continuing to use the Service after the revised Terms have been posted); otherwise, they will be effective 30 days after posting.
21. Contact Us
Hovercast Inc. welcomes comments, questions, concerns, or suggestions.
Please contact us by emailing us at firstname.lastname@example.org or write to us at:
2000 W. Addison Street, Suite 110
Chicago, IL 60618