THIS CLICK-TO-PROCEED AGREEMENT describes the terms according to which, and conditions subject to which, StreamLink Software Inc., a Delaware corporation, will grant to each User the right to use StreamLink Software cloud-based grant and board management software services (the “Services”). Capitalized terms used in this Click-To-Proceed Agreement are defined in Section 9 and the “you” referred to herein is the User entering into this Agreement with StreamLink Software.
You may not click [“I ACCEPT”] unless you intend to enter into a legally binding and enforceable contract with StreamLink Software. If you do not intend to be so bound, you should click “[I DO NOT ACCEPT]”.
In consideration of these premises, and the representations, warranties and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which you acknowledge by clicking “[I ACCEPT]”, you hereby agree with StreamLink Software as to that set forth below.
1 Basic Terms
1.1 The Services are always evolving and the form and nature of the Services may change from time to time without prior notice to you. In addition, Streamlink Software may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.
1.2 The Services may include advertisements, which may be targeted to the content or information on the Services, queries made through the Services, or other information. The types and extent of advertising on the Services are subject to change. In consideration for Streamlink Software granting you access to and use of the Services, you agree that Streamlink Software, third party providers and partners may place such advertising on the Services or in connection with the display of content or information from the Services whether submitted by you or others.
1.3 You may use the Services only if you can form a binding contract with Streamlink Software and are not a person barred from accessing the Services under the laws of the United States or other applicable jurisdiction. If you are under 18 years of age you may not access or use the Services for any reason.
1.4 You are entirely responsible for maintaining the confidentiality of the password you choose to use access the Services and for all use of your account. You may not use the StreamLink Software account, username, or password of any other at any time or disclose your password to any third-party. You shall notify StreamLink Software immediately if you suspect any unauthorized use of any StreamLink Software account or of your password. You are solely responsible for any and all use of your StreamLink Software account.
2 License Terms
2.1 StreamLink Software hereby grants to you a limited, nonexclusive and nontransferable right and license for you to use the Services in accordance with this Agreement.
2.2 You may not (a) authorize or license any other party to use the Services or any part thereof (whether directly or indirectly), (b) modify or customize the Services or any part thereof, (c) create any derivative works in, or based on, the Services or any part thereof, (d) print, copy or reproduce the Services or any part thereof, (e) distribute, license, sublicense, promote, distribute, market, sell, lease, assign, convey, transfer or transmit the Services or any part thereof (whether physically or electronically) or (f) decompile, disassemble, decode or otherwise reverse engineer the Services or any part thereof.
2.3 All right, title and interest in and to each of the following is, shall be and at all times shall remain the exclusive property of StreamLink Software and any third-parties whose software programs may have been, or may be, incorporated into the Services: (a) the Services, the Object Code and the Source Code, (b) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by either Party from its use of the Services or in the performance of its obligations according to this Agreement and (c) all copyright, trademark, patent, trade secret and intellectual property rights in the Services. StreamLink Software, on behalf of itself and any third-parties with software that may have been, or may be, incorporated into the Services, reserves all of its, and all of such third-parties’, rights in the same.
3 Use of the Services
3.1 We reserve the right at all times (but will not have an obligation) to suspend and or terminate users or reclaim usernames without liability to you. Your access to the Service may be suspended or terminated if your account becomes delinquent.
3.2 You may not do any of the following while accessing or using the Services: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service ; (iii) create Internet “links” to the Service or “frame” or “mirror” on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; (v) access, tamper with, or use non-public areas of the Services, Streamlink Software’s computer systems, or the technical delivery systems of Streamlink Software providers; (vi) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (vii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Streamlink Software (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Streamlink Software (NOTE: scraping the Services without the prior consent of Streamlink Software is expressly prohibited); (viii) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (ix) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Services.
3.3 You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. The Services may not be used for direct commercial endeavors unless otherwise authorized by StreamLink Software. StreamLink Software may remove commercial content in its sole discretion. Illegal and/or unauthorized use of the Services is prohibited.
4 Customer Data
4.1 StreamLink does not own Customer Data and StreamLink shall not have any responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. StreamLink shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer expressly represents that it has the full right and authority to upload Customer Data to the Services and that the collection use and processing of Customer Data is in accordance with applicable law.
4.2 Customer grants to Streamlink the necessary license to use Customer Data in accordance with this Agreement and to provide full functionality of the Services.
4.3 In the event this Agreement is terminated (other than by reason of your breach), StreamLink will make available to you the Customer Data in a format that you may request, provided that you pay for the reasonable fees and expenses that StreamLink may charge for the transfer of such Customer Data, and StreamLink shall have no obligation to retain or maintain the Customer Data after the earlier of (i) the transfer of Customer Data to you or (ii) 90 days after the termination of this Agreement. Upon termination for cause, your right to access or use Customer Data immediately ceases, and StreamLink shall have no obligation to maintain or forward any Customer Data.
5 Warranties; Indemnification; Limitations on Liability; Remedies
5.1 Please read this section carefully since it limits the liability of Streamlink Software and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Streamlink Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
5.2. Warranties. You hereby represent and warrant to StreamLink Software that you have the full right, power, authority and capacity to enter into, and fully perform your obligations according to, this Agreement. You further represent and warrant to StreamLink Software that (a) your use of the Services does not violate any applicable law, (b) you own or otherwise have the legal right to deliver Customer Data to StreamLink Software, (c) your delivery of Customer Data to StreamLink Software does not result in your or any other party owing to any third-party, and does not create in any third-party the right to, any amounts, goods and/or services and (d) neither delivering Customer Data to StreamLink Software, nor the display of the Customer Data to other Users, if applicable, violates any of the rights of any person or entity.
5.3 Third Party Links. During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. StreamLink and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. StreamLink does not endorse any sites on the Internet that are linked through the Service. StreamLink provides these links to you only as a matter of convenience, and in no event shall StreamLink or its licensors be responsible for any content, products, or other materials on or available from such sites. StreamLink provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
5.4 Indemnification. You shall indemnify, defend and hold harmless the Streamlink Software Entities from and against any liabilities, costs, fees and/or damages that arise out of any claim for damages resulting from (a) any material inaccuracy or breach of the representations and warranties made by you in this Agreement and/or (b) any material breach of a covenant made by you in this Agreement, including without limitation any Customer Data you upload to the Services.
5.5. Warranty Disclaimer. The Services is provided by StreamLink Software on as “as-is” basis. All warranties, whether oral or written, express or implied or contractual or statutory, are expressly disclaimed. Without limitation, StreamLink Software neither represents nor warrants, nor covenants, that (a) the operation and/or use of the Services will be uninterrupted or error-free, (b) the Services will perform in every operating environment, (c) all deficiencies or errors in the Services are capable of correction or (d) the Services meets the requirements of any party whatsoever. The implied warranties or merchantability and fitness for a particular purpose are specifically disclaimed.
5.6 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SHORT NAME ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SHORT NAME ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID SHORT NAME, IF ANY, IN THE PAST SIX MONTHS FOR ACCESS TO THE SERVICES GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE SHORT NAME ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5.7 Special Damages. Neither party may be held liable to the other, or to any other party, for any indirect, incidental, special, consequential, exemplary or punitive damages (including lost or anticipated revenues or profits) arising from any claim relating directly or indirectly to this agreement, whether based on warranty, contract or tort (whether under a theory of negligence, strict liability or otherwise), even if an authorized representative of such party is advised of the likelihood or possibility thereof.
5.8 Reasonable Reliance. Each party acknowledges that the other party has relied upon the limitation on liability set forth for this and, but for their inclusion herein, would not have entered into this agreement.
5.6 Injunctive Relief. You acknowledge (a) that StreamLink Software will suffer irreparable harm, and that the amount of monetary damages would be extremely difficult or impossible to calculate, if you breach your obligations according to this Agreement, (b) that if you breach your obligations according to this Agreement, StreamLink Software may seek, and you covenant not to dispute any attempt by StreamLink Software to seek, injunctive relief without proving actual damages and (c) that remedies sought by StreamLink Software in accordance with this shall be in addition to, and without limitation of, any other rights to which StreamLink Software may be entitled according to this Agreement or Law.
6.1 If you receive Confidential Information, you (a) shall use such Confidential Information solely in connection with your proper use of the Services, (b) shall hold such Confidential Information in confidence and take reasonable precautions to protect such Confidential Information (including all precautions that you employ with respect to your confidential materials and/or the confidential materials of that Customer with which you are affiliated, if any), (c) may not divulge any Confidential Information or any information derived therefrom to any third-party and (d) shall only divulge such Confidential Information to those who have a reasonable need to know such information.
6.2 The provisions of §6.1 may not be applied (a) to any Confidential Information that (1) is or becomes (through no improper action or inaction by you or those to whom you may have divulged such the) generally available to the public, (2) was in your possession or known by you prior to receiving it, (3) was properly disclosed to you without any obligation of confidentiality or (4) was discovered or created by you without reliance on such Confidential Information (as shown in your records) or (b) to disclosures required by Law or court order, provided that you (1) use reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order with respect thereto, (2) have allowed StreamLink Software to participate in the proceedings related to such legal or court-ordered requirement (to the extent reasonably practical) and (3) cooperate reasonably with StreamLink Software efforts to contest or limit the scope of such required disclosure (if any).
7 Export Controls
This site provides services, software, technology and encryption technology that may be subject to licensing and other United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. You agree that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
StreamLink and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Customer Data, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
Under the terms of your subscription order, you may be subscribed for automatically recurring monthly, annual or other subscription period, and we reserve the right to charge your credit card (or other form of payment, if applicable) prior to the start of each such period unless you cancel your subscription by written notice to us at least 15 days prior to the start of such period. If you subscribed initially under a free trial period, at the end of such period you will automatically be subscribed for a term and at the rates prescribed under the terms of your subscription order unless you cancel your subscription prior to the end of the trial period by contacting customer service at email@example.com.
8 Term & Termination
8.1 This Agreement shall remain in full force and effect until the sooner of (a) the termination of any applicable
Subscription Agreement and/or (b) this Agreement’s termination according to 8.2.
8.2 You may end your legal agreement with Streamlink Software at any time for any reason by deactivating your accounts and discontinuing your use of the Services. In order to deactivate your account, please contact us at firstname.lastname@example.org.
8.3 We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or through the Services the next time you attempt to access your account.
8.4 In all such cases, the Terms shall terminate, including, without limitation, your license to use the Services, except those Sections you would expect to survive termination.
8.5 Nothing in this section shall affect Streamlink’s rights to change, limit or stop the provision of the Services without prior notice, as provided above.
9 Defined Terms
“Agreement” means this Click-To-Proceed Agreement entered into by and between you and StreamLink Software. “Amounts Due” means any amounts due to StreamLink Software according to the provisions of this Agreement.
“Confidential Information” means (a) information relating to this Agreement that is not generally known to the public or that constitutes a trade secret, (b) information that is owned, developed or otherwise acquired by StreamLink Software, including its financial data, business plans, customer information, software, programming, systems and use documentation, technical information, technology, designs, ideas, inventions, data, data formats and files, and all copies and tangible embodiments thereof, (c) the Services, the Object Code and the Source Code and (d) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by StreamLink Software in the performance of its obligations according to this Agreement.
“Customer” means a party with which StreamLink Software has entered into a Subscription Agreement, if any.
“Customer User” means any person who is authorized by a Customer to use the Services.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state or local government or any agency or instrumentality thereof and any arbitrator, court or tribunal of competent jurisdiction.
“Object Code” means the machine-readable computer software code relating to the Services, including any Update or Upgrade, which code is substantially in binary form that is directly executable by a computer after processing without compilation or assembly.
“Party” means either StreamLink Software or you.
“Services” means StreamLink Software cloud-based grant and board management Servicess made available to the Customer with which you are affiliated, including any third-party software embedded therein, any Updates and any Upgrades.
“Source Code” means (a) the computer software code comprising the statements, instructions and data relating to the Services displayed in a form readable and understandable by a programmer of ordinary skill, (b) technical documentation and specifications relating to the Services, including a description of the tools used to develop and maintain the Services, the compiler or assembler and compilation and execution procedures and (c) the computer software code, technical documentations and specifications relating to any Updates or Upgrades.
“StreamLink Software” means StreamLink Software Inc., a Delaware corporation.
“Subscription Agreement” means an agreement entered into by StreamLink Software and the Customer in which StreamLink Software, among other things, grants the right to use the Services, as the same may be amended, or otherwise supplemented, from time to time.
“Update” means any update, feature release (e.g., 2.0 to 2.1), patch release (e.g., 2.0.1 to 2.0.2), maintenance release, bug fix or modified form of the Services that performs comparable or improved functionality and which is not an Upgrade.
“Upgrade” means any new version or major release (e.g., 2.0 to 3.0) of the Services, including any changes to the Services that (a) substantially increase the speed, efficiency or ease of use of the Services or (b) add additional capabilities to, or otherwise improve the functions of, the Services.
“User” means any person who uses the Services.
10 General Provisions
10.1 These Terms and any action related thereto will be governed by the laws of the state of Ohio without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in Cuyahoga County, Ohio, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. You agree that you may only bring claims against Streamlink related to your use of the Services on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding.
10.3 StreamLink Software may change this Agreement from time to time and any such changes shall be effective upon your clicking [“I ACCEPT”] when requested to do so after any such change is made.
10.4 Any provision of this Agreement may be waived, terminated or discharged with StreamLink Software consent at any time and in its sole discretion. The failure of StreamLink Software to insist upon the performance of any of the terms or conditions contained in this Agreement and/or to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.
10.5 If any provision of this Agreement is held to be unenforceable, the Parties shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each Party prior to such holding with respect to each such provision rendered unenforceable. If the Parties cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, this Agreement shall be enforceable in accordance with its terms.
10.6 You may not assign this Agreement, in whole or in part, by operation of Law or otherwise, without StreamLink Software prior written consent. Any attempt to do so shall be deemed null and void and of no legal force or effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties’ successors and permitted assigns.
10.7 Neither Party may be held liable for its failure to perform hereunder, or for any loss or damage, due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.
10.8 Unless the context clearly requires otherwise, (a) the singular shall be deemed to include the plural and vice versa(b) reference to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as may be amended or modified and in effect from time to time, (c) “hereunder”, “hereof”, “hereto” and words similar thereto shall be deemed references to this Agreement as a whole and not to any particular provision hereof, (d) the words “include” and “including” shall be deemed to mean “without limitation” and shall be interpreted not to limit the generality of any description preceding such term, (e) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding” and (f) any reference to a “§” or “§§” in this Agreement shall be construed as a reference to a section of this Agreement.
10.9 Neither this Agreement nor any provision contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the Parties. The relationship created hereby is strictly that of licensor and licensee. For the avoidance of doubt, neither Party has the power or authority to, and no Party may, assume or create any obligation or responsibility on behalf of the other.
10.10 This Agreement shall be deemed fully and finally executed as soon as you click “[I ACCEPT]” and any copy hereof, together with evidence of your having done so, shall be deemed an original and all of which together shall constitute a single instrument.