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This Service Agreement is Version Number 1.1.07 Date: October 1, 2007.
1. . For the purpose of this Service Agreement ("Agreement") TOTAL COMCO, INC., a California Corporation, through its wholly owned subsidiary, YouLiveNow, Inc’. will hereinafter be collectively referred to as YOULIVENOW. "You" and "Your" refer to each Service User ("Client"). "We", "us" and "our" refer collectively to YOULIVENOW. This Agreement explains our obligations to you, and your obligations to us in relation to the Service(s) provided by YOULIVENOW. This agreement is a legally binding agreement between you and YOULIVENOW. YOULIVENOW provides content streaming and social networking services for the sharing of live video chat on the Internet hereinafter referred to as the “Service” by our users through our website accessible at www.youlivenow.com hereinafter referred to as the “Site”. Please read the following important terms and conditions “Terms of Service” carefully. These Terms of Service govern your access to and use of the Site, including any content, information, products or Services therein. This is a legal agreement between you and YOULIVENOW. From time to time, many different third party domain names may use the Service. These domain names do not have any obligation to you as outlined in this agreement.
2. . You agree to: (1) provide true, current, complete and accurate information about yourself as required during the registration process and (2) maintain and update your account information as required to ensure all account information is current.
3. . Except as otherwise set forth herein, all rights, title and interest in, and to all, (1) registered and unregistered trademarks, servicemarks and logos; (2) patents, patent applications, and patentable ideas, inventions, and/or improvements; (3) trade secrets, proprietary information, and know-how; (4) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (5) registered and unregistered copyrights including, intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of Services identified herein ("YOULIVENOW’s Intellectual Property Rights") are owned by YOULIVENOW, and you agree to make no claim of interest in or ownership of any such YOULIVENOW Intellectual Property Rights. You understand and agree that no title to the YOULIVENOW Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service, other than the rights expressly granted in this agreement. To the extent that you create any Derivative Work (defined as any work that is based upon one or more pre-existing versions of a work provided to you, such as an enhancement or modification , revision, translation, abridgement, condensation, expansion, collection, compilation, or any other form in which such pre-existing works may be recast, transformed or adapted) such Derivative Work shall be owed by YOULIVENOW and all right, title and interest in and to each such Derivative Work shall automatically vest in YOULIVENOW. YOULIVENOW shall have no obligation to grant you any right in any such Derivative Work.
4. . You agree that our entire liability and your exclusive remedy, in law, in equity, or otherwise, with respect to any Service provided under this agreement and/or for any breach of this agreement is solely limited to a maximum of $10 US funds. In no event shall YOULIVENOW, including third parties providing services for and to YOULIVENOW, be liable for any indirect, incidental, special or consequential damages even if YOULIVENOW has been advised of the possibility of such damages. To the extent that a judicial region does not permit the exclusion or limitation of liability as set forth herein YOULIVENOW's liability is limited to the extent permitted by law in such judicial regions. YOULIVENOW disclaims any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of god; (4) loss or liability resulting from the unauthorized use or misuse of your account name, password or security authentication; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages.
5. . YOU AGREE THAT YOUR USE OF OUR SERVICE(S) IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. YOULIVENOW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOULIVENOW MAKES NO WARRANTY THAT SERVICE(S) HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
6. . You agree to release, indemnify, defend and hold harmless YOULIVENOW and any of our contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorney's fees and expenses, relating to or arising out of (a) this Agreement or the breach of any alleged warranties, representations and obligations under this Agreement, (b) YOULIVENOW services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operation rules or policies relating to the service(s) provided, (e) any information or data you supplied to YOULIVENOW, including, without limitation, any misrepresentation submission of information. If in the event we are threatened with a suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. We shall have the right to participate in any defense by you of a third-party claim related to your use of any of the Service, with counsel of our choice at our own expense. We shall reasonably cooperate in the defense at your request and expense. You shall have sole responsibility to defend us against any claim, but you must receive our prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.
7. . (a) By You. You may terminate this Agreement upon at least thirty (30) days written notice to YOULIVENOW for any reason. Notice of your termination will be effective on receipt and processing by us and addressed to:
TOTALCOMCO, INC.
400 South Beverly Drive
Penthouse Suite
Beverly Hills, California 90212
(b) By Us. YOULIVENOW reserves the right, in its sole discretion, to terminate this Agreement or any part of the Service at any time, without notice or reason given to you.
8. . You agree and warrant that: (1) neither the use of the Service nor the manner in which you intend to use such Service will directly or indirectly infringe the legal rights of third party, (2) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (3) you are at least eighteen (18) years old; if you are under the age of 18, that you have acquired your parents or legal guardian’s authority to execute this Agreement and (4) you agree to comply with all applicable laws and regulations.
9. . Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Any such revision or change will be binding and effective immediately at the time of your continued use of our Services. It is your sole responsibility to review this Agreement in a timely manner. The continued use of the Service indicates your acceptance of the revised Agreement.
10. . To access or use the Service or to modify your account, you are required to establish an account and obtain a login name and password. You authorize us to process any and all account transactions initiated through the use of your password. You are solely responsible for maintaining the confidentiality of your password, and you are responsible for any authorized and/or unauthorized activities, charges and/or liabilities made through your password. In no event will we be liable for the unauthorized use or misuse of your login name and password. YOULIVENOW RESERVES THE RIGHT TO TERMINATE YOUR ACCESS WITHOUT REASON OR ADVANCE NOTICE GIVEN TO YOU. Termination of account access does not release you from their legal obligation as outlined in this Agreement.
11. . (a) Except as expressly provided otherwise herein, all notices to us shall be in writing and delivered via overnight courier or certified mail, return receipt requested to TOTAL COMCO, INC., Attention: Legal Department, 400 South Beverly Drive, Penthouse Suite, Beverly Hills, California 90212. All notices to you shall be delivered to your mailing address or e-mail address as provided in your account information (as updated by you pursuant to this Agreement). (b) You authorize us to contact you via telephone, e-mail or postal mail regarding information that we deem is of potential interest to you.
12. . You agree that the terms of the Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
13. . You agree that this Agreement, the rules and policies incorporated by reference in this Agreement, including, without limitation, the CODE OF CONDUCT and the privacy statement are the entire, complete and exclusive agreement between you and us regarding our services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent with respect to the subject matter of this Agreement.
14. . Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders the Agreement void at our option. You agree not to resell any of the Services without YOULIVENOW prior written consent.
15. . This agreement shall be deemed to have been made in the State of California, with venue in Los Angeles County and the validity, construction, interpretation and enforcement hereof and the rights of the parties hereto shall be determined under, governed by, and construed in accordance with the laws of the State of California without regard to the principles of conflicts of laws. Each party is specifically prohibited from bringing any action arising from or related to this agreement other than in the County of Los Angeles, California unless the said action is for the purpose of enforcing a Judgment already obtained in the County of Los Angeles, California, State of California.
16. . YOU ACKNOWLEDGE THAT THE RIGHT OF TRIAL BY JURY IS A CONSITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, CAN KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY. IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN YOU AND YOULIVENOW, BY AGREEING TO THE TERMS AND CONDITION OF THIS AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE, OR HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL OF YOUR CHOICE AND HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT OF TRIAL BY JURY AS SUCH RELATES TO ANY DISPUTE TO THIS AGREEMENT.
17. . Though our online application process or otherwise, or by use of the Service provided under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
18. . Neither party nor their employees, consultants, are employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing person shall not represent the contrary, either expressly, implicitly, by appearance or otherwise.
19. . No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of YOULIVENOW. The remedies of YOULIVENOW under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be constructed as a waiver of any rights arising out of any prior or subsequent breach.
20. . Nether party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, YOULIVENOW may immediately terminate this Agreement.
21. . The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
22. : YOULIVENOW reserves the right to limit or manage the access to any video chat session.
23. . a) YOULIVENOW does not allow, within its reasonable control, nudity, which may include without limitation, genitalia or bare chests in video chat sessions. YOULIVENOW and or its appointed representatives are hereby granted the full rights to terminate your participation in a video chat session at their discretion, as they see fit, if they observe or become aware of conduct that violates the above-referenced CODE OF CONDUCT.
b) This Service is recommended for people over the age of 16. IF YOU ARE UNDER 16 YEARS OF AGE YOU ARE NOT PERMITTED ACCESS to the Service unless you have acquired your parents or legal guardian’s authority to execute this Agreement and utilize the Service. YOULIVENOW, and or its appointed representative(s), are hereby granted full right to request proof of age and/or proof of parent or legal guardian’s authority for the use of Service. If proof of age or authority to use the Service cannot be ascertained through reasonable means YOULIVENOW reserves the right to ban users in question from the Service until which time appropriate reasonable proof of age or authority of use is obtained.
c) You may not use this web site for any illegal or unauthorized purpose. International users agree to comply with local rules regarding online conduct and acceptable content. You are completely responsible for your own conduct and management of data, text, video and audio transferred to and from the web site. You warrant that you have clear ownership or control of rights for all your managed content. YOULIVENOW is hereby granted permission, at its sole discretion, to remove any material from the web site in which YOULIVENOW believes to be an infringement on the rights of others.
d) The Service may contain, but is not limited to, video/audio broadcasts, text, photos, and links, which may, from time to time, provide a means of communication within the Service. At no time will you use such means of communication on this Service to: (a) defame, abuse, harass, imitate, impersonate, stalk, threaten and violate any or all legal rights belonging to any other person; (b) distribute or publish fraudulent, inappropriate, profane or obscene material; (c) spam; (d) flood video chat sessions with text; and (e) post disruptive, off topic comments or statements that is intended to incite others to violate this Code of Conduct or participate in illegal activities.
e) You may not post any material such as software or other information that could harm other user's computers or would allow others to inappropriately access software or other web sites.
f) You may not falsely impersonate any authority member from YOULIVENOW. Nor may you not falsely impersonate any YOULIVENOW appointed representatives. An attempt to mislead or cause harm to the Service or other members will be dealt with appropriate legal means.
g) You may not sell, barter license, exchange or trade any space provided to you within the Service. The Service provided to you is for your own personal non-commercial use.
h) You are required to treat others with mutual respect.
i) You may not access another member's account. You may not attempt to login into video chat sessions which are not yours or to which you have not been invited.
j) You may not display, advocate or encourage expressions of violence, bigotry, racism, hatred, obscenity or profanity on the Service.
k) You may not use the Service to collect or attempt to collect personal information about third parties without their knowledge or consent.
l) NO NUDITY. Adult situations, mature subject matter and nudity are prohibited. Violations will be automatically considered violations of YOULIVENOW’s CODE OF CONDUCT and violators will be banned from the Service.
m) You may not use the Service for commercial purposes.
n) You may not broadcast or stream recorded video and/or pictures that violates YOULIVENOW’s CODE OF CONDUCT .
24. . You hereby grant YOULIVENOW, through use of this Service, the right to represent your use, content and activity in the Service using various domain names and links.
25. . For the purposes of facilitating compliance with the provisions of any applicable government privacy legislation you hereby consent to YOULIVENOW ‘s collection of and use of your personal information necessary to allow participation of activity in whole or part on the Service.
YOULIVENOW does not, without provision in this privacy policy, share personally identifiable information about you and your aggregate usage information that we collect with any other company.
a) . YOULIVENOW will log technical information regarding your visit. This is customary with most servers on the internet. The server logs information such as your origin, frequency of visit, referring link, IP address, choice of browser and other forms of statistical information may be collected by YOULIVENOW.
YOULIVENOW will count and track and aggregate visitor activity for analysis of general traffic flow. The information collected is aggregated and logged, and used to measure statistical information about usage of the site, including but not limited to the total number of visits, average time spent on the site, both in real-time, and within a certain historical time frame. YOULIVENOW uses this aggregated information to measure the use of our site and to improve the content and usage of the Service.
b) Disclosure of Information. You acknowledge and agree and hereby grant to YOULIVENOW the absolute right and power, as it deems necessary in its sole discretion, without providing notice and without any liability to you whatsoever, to reveal your information to comply with applicable laws, government rules or requirements, subpoenas, court orders, requests of law enforcement or government agencies and technical support requests. YOULIVENOW does not protect information posted to any blog, chatroom, or any other public accessible information display.
In addition, through use of the Service you hereby give consent to YOULIVENOW to disclose your information it deems fit to:
1) any financial institution(s) providing, or wishing to provide, financing, banking, and/or other financial or related services to YOULIVENOW, which may require information or verification of information;
2) any relevant governmental authorities or agencies, including without limitation, any other governmental authority or agency that exist now or may come into existence in the future;
3) any other and all qualified users of this Service; and
4) any person, where you further consent to such disclosure or disclosures required by law.
c) Use of Cookies and Shared Objects. YOULIVENOW utilizes cookies and shared objects to store information about a computer’s use of the Service. This information is stored locally on your computer. These tools are intended to track use of machines on the servers. In no way do they uniquely identify a specific person using the computer. If you do not agree with the use of these methods you may choose to terminate your acceptance to your agreement with YOULIVENOW as outlined in the Agreement. Continued use of the Service indicates acceptance.
d) Promotion. From time to time YOULIVENOW may sponsor various contests or promotions. Information collected may be used to inform you of such contests or promotions. At no time will YOULIVENOW client information be made available to any other company enabling them to provide promotional or contest information.
e) Exit links. YOULIVENOW does not warrant this policy effective to web sites visited from the Service. YOULIVENOW is unable to control and is not responsible for the privacy practices or content of such other websites visited via the exit link. The existence of the link does not bind nor obligates YOULIVENOW to privacy statement or terms of the destination website.
f) Monitored Behavior. As a general rule YOULIVENOW monitors the Service for compliance to the Agreement and its CODE OF CONDUCT. While we do not as a general rule monitor chat sessions, YOULIVENOW reserves, and through your use of the Service hereby grant, the right to monitor all interaction, without limitation including video, audio and text, under the following conditions:
1) suspected user(s) to be under the recommended age access;
2) suspected use of the site for the purpose of commercial use; and
3) suspected violations of, and/or monitoring compliance with the Agreement and YOULIVENOW’s CODE OF CONDUCT.
g) Information Collection. YOULIVENOW does not knowingly collect or maintain information from those that are under the age of 16. We reserve the right and are hereby given full authority, through your use of the Service, to request proof of age at all times through whatever means we deem acceptable.
26. : Copyright (c) 2007 TOTAL COMCO, INC. a California Corporation, through its wholly owned subsidiary, YouLiveNow, Inc. All rights reserved. YouLiveNow, Inc., the logo, the symbol and phrase "streaming you to the world” “GreenStream” are trademarks or registered trademarks of TOTAL COMCO, INC.
27. , through the use of GreenStream and/or embed code, provides a member the ability to operate a hosted video chat session on their own computer. Members may not use this code on any other domain without the express written consent of YOULIVENOW. YOULIVENOW may at any time, without reason or notification, opt to discontinue the Service at any time.
28. Both parties agree this agreement shall be written in the English language.
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