Flingo™ End User License Agreement
Samba is provided by Free Stream Media Corp ("Us" or "We" or “Flingo”), located at 164 Townsend St, Suite 12, San Francisco, CA 94107. Samba is a home entertainment service (“Service” or “Services”) for viewing and/or interacting with videos, images, artwork and/or other content ("Content") through a consumer electronics device with Internet connectivity (the "Equipment"). TO USE THIS SERVICE, YOU MUST HAVE HIGH-SPEED INTERNET CONNECTIVITY AND EQUIPMENT ASSOCIATED WITH OR ENABLED BY FLINGO.
Please direct all questions regarding Samba to: Free Stream Media Corp., Attn: Custom Care, 164 Townsend St. #12 San Francisco, CA 94107 or find customer care made available by your Equipment manufacturer.
(EFFECTIVE AS OF May 2nd, 2013)
PLEASE READ CAREFULLY
Should you have any questions concerning this Agreement or need technical support, you may contact Samba support by visiting http://flingo.tv/support.
This EULA (this "Agreement") is a legal agreement between you and Free Stream Media Corp. providing, among other things, the terms and conditions for your use of Samba, including such Applications as may be included with the Equipment or available via our Web site (the "Site") http://samba.tv, a mobile device, or otherwise.
1. AUTHORIZED USERS
1.1 Age Requirement; Authority. In order to use any of the Samba Services, you must be at least 13 years of age. You (“You”) represent that (i) You have read and understood, and that You agree to be bound by, this Agreement, and (ii) You are at least 13 years old. If You do not agree to, or cannot comply with, any of the terms and conditions of this Agreement, please do not check the acceptance box and do not attempt to access or use any Samba Services.
Free Stream Media Corp. Attn: Custom Care, 164 Townsend St. #12 San Francisco, CA 94107. Opting out may prevent You from receiving messages regarding Samba or special offers.
1.3 Account Confidentiality. You agree that You will not allow others to use any aspect of your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of your account. You agree to notify us immediately of any unauthorized use of your password and/or account. We will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and You agree to indemnify and hold us harmless, along with our partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
1.4 Security. To prevent unauthorized access, to maintain data accuracy, and to ensure the appropriate use of Account Information, We use appropriate physical, technical and administrative procedures to safeguard the information We collect.
We use Secure Sockets Layer (SSL) encryption when collecting or transferring sensitive data such as credit card information. SSL encryption is designed to make the information unreadable by anyone but Us. Credit card numbers are used only for processing payments and are not used for other purposes.
2. LICENSE TO SAMBA
2.1 License Grant. Flingo grants You a limited, non-exclusive, non-transferable license to access and use Samba for personal purposes only. Any violation by You of the license provisions contained in this Section 2.1 may result in the immediate termination of your right to use Samba. Flingo reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF SAMBA NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
2.2 Updates. Flingo may, from time to time, make available Updates to all users of Samba at no cost or subject to additional fees in our sole discretion. "Updates" means any updates, upgrades or error corrections to Samba that We make available generally to users of Samba. Notwithstanding anything else contained in this Agreement, We will have no obligation to continue producing or releasing new versions of Samba or any Updates thereto.
3. CONTENT AND RESTRICTIONS
You understand and agree that Content and any metadata may be licensed by Free Stream Media Corp from content providers ("Content Providers"). All Content is licensed, not sold, transferred or assigned to You, for personal, non-commercial use only via Samba and on Flingo-enabled Equipment.
You agree that You will not:
3.1 use Samba to reproduce copyrighted materials for which You do not own the copyrights;
3.2 unless specifically enabled and authorized to do so by a Samba Service, copy, store, edit, change, prepare any derivative work of or alter in any way any Content provided through Samba;
3.3 provide your password to any other person;
3.4 translate, reverse engineer, decompile, disassemble, modify or create derivative works based on Samba or any portion of them;
3.5 circumvent any technology used by Flingo or its licensors or partners to protect content accessible via Samba;
3.6 rent, lease or sublicense any of the Samba Services; or
3.7 use Samba in any way that violates the terms of this Agreement.
Without limiting the generality of the foregoing, unless specifically enabled and authorized to do so by a Samba Service, You may not duplicate, reproduce, transfer, record, or create copies of Content or any portion thereof (including without limitation by "burning", P2P file-sharing, posting, uploading or downloading) onto any physical medium, memory or device, including without limitation, CDs, DVDs, VCDs, portable media devices, computers or other hardware or any other medium now owned or hereinafter devised. You may not attempt to circumvent, avoid, bypass, remove, deactivate, impair or otherwise defeat any encryption, rights signaling or copy protection technology in which the Content is wrapped or otherwise associated. You may not decompile, copy, reproduce, reverse engineer, disassemble or otherwise reduce the computer file in which the Content is stored to a human-readable form. Any unauthorized copying or other activities that infringe upon the intellectual property rights of owners of the Content are prohibited, and You expressly agree to the automatic termination of Samba if you engage in any infringing activities. Upon any such termination, Content may be deleted from your Equipment.
4. COPYRIGHTS and THE DIGITAL MILLENNIUM COPYRIGHT ACT
As between You and Flingo, you acknowledge that Flingo owns or has a license to all title and copyrights in and to the Samba Services we have created. All title and intellectual property rights in and to the Content in Samba is the property of the respective Content owner(s) or Content Provider and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties. No right, title or interest in Content is transferred to You.
If You send us any submissions (e.g., emails, letters, text messages, postings to chat rooms, boards, or contests), feedback, creative suggestions, ideas, notes, drawings, concepts, or other information, they will be deemed to be our property and we will not be liable for any use or disclosure of such submissions. Without limitation of the foregoing, we shall exclusively own all now-known or hereafter existing rights to the submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the submissions. The content of any submissions must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise injurious to third parties or objectionable, and may not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of the content. We reserve the right (but not the obligation) to remove or edit such content, but we do not regularly review posted content.
If you are a copyright owner or an agent thereof and believe that any Content, user submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):
· A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· Identification of the copyrighted work claimed to have been infringed;
· Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
· Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
· 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 law; and
· A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement is: Free Stream Media Corp. Attn: Copyright Agent, 164 Townsend #12, San Francisco CA 94107; email to: firstname.lastname@example.org. Only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Free Stream Media Corp Attn: Customer Care, 164 Townsend #12, San Francisco CA 94107. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
If you believe that Content or a submission of yours that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content or submission, you may send a counter-notice containing the following information to the Copyright Agent:
· Your physical or electronic signature;
· Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
· A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
· Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in San Francisco County, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that the removed content may be replaced or no longer disabled in 10 business days.
Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
5. FLINGO TRADEMARKS AND THIRD-PARTY TRADEMARKS
The following are registered trademarks or trademarks of Flingo: Flingo™, and its design logo, as well as certain other Flingo Trademarks, service marks, graphics, and logos (collectively, the "Flingo Trademarks") used in connection with Samba. Samba may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to Flingo Trademarks or the trademarks of any third party.
Samba uses technology to protect the digital information provided by Flingo from unauthorized use. Your use of Samba may be limited by such technology. You acknowledge that, from time to time, Flingo may modify or discontinue using such technology. Security modifications made by Flingo may from time to time include required updates to Samba. IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.
8. AGREEMENT TO PAY
If You elect to purchase certain Samba Services, You agree to pay all charges associated with such purchase. All such charges (including any taxes, as applicable) will be charged on your credit card. If You purchase any Samba Services, You will maintain valid credit card information in your Account Information.
This Agreement will remain effective until terminated by You or terminated by Us; provided that Sections 3 – 5 and 9 - 13 will survive termination and continue in effect.
10.1 SAMBA (INCLUDING ANY SOFTWARE CONTAINED THEREIN) AND ANY UPGRADES OR PLUG-INS AND ANY CONTENT ARE LICENSED TO YOU "AS IS." ANY USE OF SAMBA WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLINGO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FLINGO MAKES NO REPRESENTATIONS OR GUARANTEES THAT SAMBA WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND FLINGO DISCLAIMS ANY LIABILITY RELATING THERETO.
10.2 FLINGO MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT USE OR RESULTS OF THE USE OF SAMBA WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, FLINGO MAY MODIFY, SUSPEND, OR DISCONTINUE SAMBA (INCLUDING ANY CONTENT PROVIDED THEREBY) OR YOUR USE OF THEM. WHENEVER FLINGO ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE SAMBA, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.
10.3 YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION TO US IS AT YOUR OWN RISK. FLINGO DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
10.4 YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT WHEN USING SAMBA. FLINGO HAS NO LIABILITY TO YOU FOR ANY SUCH CONTENT.
10.5 SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH SAMBA MAY INCLUDE MATERIALS THAT BELONG TO THIRD PARTIES. YOU ACKNOWLEDGE THAT FLINGO ASSUMES NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS OR SERVICES.
11. LIMITATIONS OF LIABILITY
11.1 IN NO EVENT WILL FLINGO BE LIABLE TO YOU FOR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF SAMBA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FLINGO OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.
11.2 FLINGO’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF ONE DOLLAR (US $1.00) OR THE TOTAL AMOUNT PAID BY YOU FOR THE APPLICABLE FLINGO SERVICES AT ISSUE.
YOU WILL INDEMNIFY AND HOLD FLINGO, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (I) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (II) YOUR USE OF THE SAMBA SERVICES.
13.1 You will be responsible for providing the DSL, cable modem and any other hardware (such as a screen) necessary to use Samba with the Equipment.
13.2 Flingo or its partners may present advertisements or promotional materials via Samba. Your dealings with, or participation in promotions of any third-party advertisers via Samba are solely between You and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. You agree that Flingo is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via Samba.
13.3 Samba may present links to third-party Web sites or third-party services not owned or operated by Us. We are not responsible for the availability of these third-party sites or services or their contents. You agree that We are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service.
13.4 Samba Services are owned or licensed by Flingo or its partners and subsidiaries and are protected by United States and foreign copyright laws and international treaty provisions. You will not sublicense, assign, or transfer the license granted to You under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of this Agreement is void.
13.5 This Agreement will be governed by the laws of the State of California. The exclusive jurisdiction for any claim, action or dispute with Flingo or relating in any way to your use of Samba will be in the state and federal courts of the State of California and the venue for the adjudication or disposition of any such claim, action or dispute will be in the County of San Francisco, California.
13.6 Should you have any questions concerning this Agreement or otherwise need technical support, you may contact Flingo support by visiting http://flingo.tv/support.
13.7 Flingo may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email, mobile text message, written or hard copy notice, or through conspicuous posting of such notice on Site, as determined by Flingo in its sole discretion. Flingo reserves the right to determine the form and means of providing notifications to You, provided that You may, in certain instances, opt out of certain means of notification as described in this Agreement.
13.8 Injunctive Relief. You agree that any violation or breach by You of this EULA may result in irreparable harm to Us, that monetary damages will be an inadequate remedy, and You hereby agree that We shall be entitled to seek injunctive relief.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
© 2012 Free Stream Media Corp., All Rights Reserved.
Flingo™ and Samba™ are a trademarks of Free Stream Media Corp. All other brand and product names are trademarks of their respective holders.