TERMS OF SERVICE FOR CLIPSTREAM
THESE TERMS OF SERVICE (“TERMS”, "TOS", "AGREEMENT") CONSTITUTE A CONTRACT BETWEEN YOU AND CLIPSTREAM AND GOVERN USE OF AND ACCESS TO THE CLIPSTREAM SERVICE ("THE SERVICE"), SOFTWARE, DOCUMENTATION AND SITES BY YOU, AGENTS AND END-USERS AS CUSTOMERS OR IN EVALUATION DURING THE 30=DAY FREE TRIAL.
BY REGISTERING FOR THE FREE TRIAL, ACCESSING THE SERVICE AS A PAID CUSTOMER OR AS AN END USER OF OUR SOFTWARE, PLAYER OR EMBEDDED CODE OR AUTHORIZING ANY AGENT, REPRESENTATIVE OR END USER TO DO SO YOU ARE BINDING SUCH ENTITIES TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS EXPRESSED IN THIS AGREEMENT YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICE.
YOU REPRESENT AND WARRANT THAT (i) YOU ARE ACTING IN THE CAPACITY OF AN AGENT OF THE CUSTOMER WITH THE POWER TO BIND CUSTOMER INTO THIS AGREEMENT AND (ii) YOU ARE AT LEAST 18 YEARS OF AGE AND ACKNOWLEDGE THAT DESTINY IS RELYING ON THIS REPRESENTATION IN ORDER TO GRANT YOU THE LICENSES HEREUNDER AND PROVIDE THE SERVICES. YOU AND CUSTOMER WAIVE ANY CLAIM THAT THIS AGREEMENT IS UNENFORCABLE AS A RESULT OF THE USE OF A CLICK-THROUGH ASSENT MECHANISM.
ACCOUNT - any and all accounts created by you or any agents on the Clipstream System or Service.
ACTIVE ACCOUNT - Any Account that is not Suspended or Cancelled.
API - Any existing Application Programming Interface directly or indirectly controls the hosting or playback of Clipstream technologies. Any Third Party API allowed by Clipstream to access the Services.
BRAND ("BRANDING") - any identifying trademark, logo, of Clipstream or its parent company, Destiny Software Productions, Inc.
CANCELLED - An account that is cancelled is completely erased and where the Customer can no longer sign in or access their Content. All previously hosted videos will no longer play.
CDN - Content Delivery Network. Any network that supports the hosting, co-locating and distribution of media.
CLIPSTREAM SYSTEM - The hosting system and its associated websites, servers, hardware, networks, notification methods or processes that supports or delivers the Content hosted by Clipstream technology. This includes the website: my.clipstream.com and its supporting CDN.
CONTENT ("MEDIA", "VIDEOS", "CLIPS") - Any media: video, audio, image, text that is hosted by the Customer on the Clipstream System.
CUSTOMER - The registered entity, person, persons or their agents and assigns who created the Account on the Clipstream System.
CUSTOMER DATA ("CUSTOMER INFORMATION") - any information provided by the Customer during registration. Any information gathered on Customer activity, individual Content or identity during any term period while the Customer has an Active account.
DESTINY ("DESTINY", "DESTINY MEDIA TECHNOLOGIES", "DESTINY SOFTWARE", "DESTINY MEDIA") - owners and developers of Clipstream.
DESTINY WEBSITE / SUPPORT SITES means the URL: http://clipstream.com
DOCUMENTATION - Any written text, images, audio, video or sound appearing in email, web page or on the Clipstream System that describes the functionalities of the Service or Clipstream products.
EMBED CODE - Code provided by the Clipstream Service that enables the Customer or End User to embed a link in a webpage to an Encoded video hosted on the Clipstream System.
ENCODED - Video that has been converted into the proprietary Clipstream video or audio streaming format.
END USER - any person who receives a Customer webpage containing an Embed code, who may activate the Link in the Embed code in order to view or play Content hosted on the Clipstream System.
LINK - A URL or other web address to a Clipstream website or network that contains Content hosted on the Service.
OVERAGE - any unit of measurement that is recorded by the Service as having exceeded the defined Plan Limits within the specified Term. This can include a regular 30-day term or other defined time period. This can include Minutes or units of data (MB, GB).
MAINTENANCE EVENT – Any Update, patch or change to the Service that may or may not require a temporary suspension or brief interruption of service entirely or a specific feature for the purpose of updating, improving or correcting the Service.
MINUTES - The unit of measurement for transfer of video from the Service.
PLAN ("PACKAGE") - The allowed storage in Minutes, transfer in Minutes of video and specified features defined in the Plan Limits on the Clipstream website.
PLAN LIMITS ("LIMITS") - Defined volume of Minutes or data or available features accessible by the Customer during a specified Term.
PAYMENT - Funds issued by the Customer as subscription, term payment or other specified fee toward the maintenance of their Account on the Service.
PLAYER - The software created by Clipstream that allows playback of video, audio or images hosted on the Clipstream website or Service.
RENEWED - An Account that was previously suspended either by the Customer or by Clipstream and enrolled in a new Plan.
SOFTWARE - software created or provided by Clipstream either on the Clipstream Service, Player or other products created by Clipstream.
SOURCE VIDEO ("SOURCE", "ORIGINAL VIDEO") - The original video file uploaded by the Customer to be converted into the Clipstream video format to be hosted on the System.
SUSPENDED - an Account that no longer allows streaming of Content for whatever reason but can be renewed. An Account in suspended mode may be accessed by the Customer but can no longer play Content or upload any new Content.
TERM (“PERIOD”) - The Plan or individual agreement's specified time period during which the Customer will have access to the Service and features. For regular subscription plans this is a 30 day period beginning on the day of purchase.
THIRD PARTY / PARTIES – Any entity that is not a Customer or Clipstream.
THIRD PARTY WEBSITE - A website that is not hosted by Clipstream or any of its affiliates.
UPDATES - any patch or revision made to Clipstream Services.
Clipstream means operation of the Clipstream System in order that Customer may Uupload and Encoded their Content, host the Content on the Clipstream System, include in their webpages an Embed code that links to the Encoded Content hosted on the Clipstream System and thereby permit End Users to access the Content by activating the Embed Code they receive in the webpage, in all cases subject to this TOS.
As part of the Services, Clipstream provides individual storage and administration tools to manage an Account through a website accessible using a web browser interface on both desktop and mobile devices.
Uploader / Encoder and the Clipstream format
Services include a web-based uploader tool that enables the Customer to upload their own Content to the Clipstream Service which is then Encoded into the Clipstream media format that is playable on popular web browsers.
Hosting / Sharing
Once uploaded, the Customer's content can now be shared, managed, edited, deleted and be monitored by the Customer through private account giving them access to their individual administrative tools as part of the Services.
Clipstream makes reasonable efforts to maintain through its Clipstream System a worldwide network for media hosting and transmission providing the Customer with global reach for their Content.
Videos Encoded in the Clipstream format are playable only through the patent-pending Clipstream Player. The Encoded Content is provided through Embed code that the Customer places on their webpage that includes a Link to the Encoded Content hosted from the Clipstream System. Customer and End User has no right to copy, distribute or use the Player, except the End User may operate the Player to view the Encoded Content.
Announcements, changes, maintenance events
Clipstream will endeavor to inform the Customer through email or through announcement on its website of any changes to the Service, fees, Maintenance Events or these TOS. Customer's continued use of the Clipstream System constitutes assent to those revisions.
Documentation / Support
Clipstream provides Documentation both within the Destiny website and on associated support sites accessible by the Customer. Individual case support is provided by email and phone. Clipstream endeavors to provide commercially reasonable support during regular business hours 5 days a week, Monday to Friday from 9am to 4:30pm PST. In the event Clipstream provides support concerning any problems, errors or inquiries that is unrelated to the Clipstream Service, there may be additional charges that may be charged to the Customer.
Clipstream provision of Services
Subject to Customer’s compliance with all terms of this TOS, Clipstream will use commercially reasonable efforts to provide Services as set out in this TOS and in accordance to the Customer's chosen Plan and its defined Plan Limits and within the specified Term of the Plan as defined herein or by separate agreement. Customer shall not (nor does Customer have any right to) use or operate the Clipstream System on behalf of any Third Party or as a service of any kind to others.
Customer shall not: (i) reproduce (other than for backup purposes), distribute, modify, adapt, translate, update or transmit the ProgramSystem, in whole or in part; (ii) sell, rent, lease, license, transfer, or otherwise provide access to the System or Service to a Third Party (other than visitors to the webpage comprised of the URL referencing the uploaded Customer Content); (iii) alter, remove, or cover trademarks or proprietary notices in or on the System or Service; (iv) export the System from the country in which it was provided to you by Destiny; (v) make the System or Service accessible to visitors on a non-authorized web or website or (vi) decompile, disassemble, decrypt, extract or otherwise attempt or assist others to reverse engineer the System, Service or any APIs they execute. You agree that you shall not (i) take any action or permit any party to disable, impair or tamper with the Service, (ii) upload into the Service any file that contains illegal materials or subjects Destiny to any liability, (iii) attempt to reverse engineer the Service or illicitly access the Service in any way , (iv) offer the Service to any Third Party on a service bureau or sublicense basis, (iv) share your Service account or disclose the License Keys or (v) challenge the ownership or validity of any Destiny intellectual property embodied in the System or Service.
YOU AGREE TO PROVIDE, MAINTAIN AND FULLY SUPPORT ON YOUR WEBSITE A DESTINATION FOR RECEIVING NOTICE FOR TAKEDOWN OF ALLEGEDLY INFRINGING CONTENT IN ACCORDANCE WITH U.S. COPYRIGHT LAW.
From time to time Clipstream will make Updates to the Services to improve, fix, maintain, introduce features or alter the Service. Clipstream is under no obligation to provide specific Updates to an individual Customer except where it will provide general benefit to all Customers.
FREE TRIAL ACCOUNT
The free trial Account is provided purely for the evaluation of the Clipstream Service and may not be used to support any usage beyond technical evaluation by the Customer. This prohibits commercial, private or non-profit use. As a registered user of Clipstream during the free trial period within the Term as specified, the Customer understands there is no obligation provided by Clipstream that warranties the Content or Service. During the free trial period Clipstream may terminate or restrict any feature or Term of the Account or Content. Clipstream is not responsible for any loss or harm caused by any such termination or loss of Service.
The Customer receives Service through the purchase of Plans following the subscription model (except by separate agreement). Plans that have defined transfer and Storage Limits are calculated during the Term or Period that defray costs of using the Service.
In the subscription model the Customer agrees to automatically pay the defined Plan fee at the start of each 30-day Term. Purchasing a Plan constitutes prior approval for the payment which terminates only on Suspension or Cancellation of the Account and alters when the Customer upgrades or downgrades to a different Plan.
Usage is recorded Minutes of viewing by end-users on the Customer’s shared Content when embedded outside of the Clipstream website or viewed in the provided share Link. Usage that is calculated to have exceeded the Limits will incur an Overage fee that is defined in the Plan definitions at the time of the Customer's purchase. Overage is calculated at the end of a Term Limit or when a Plan is downgraded.
Upgrading / downgrading Plans
At any time the Customer may choose a new Plan even within the middle of the 30-day term and will immediately be charged the cost difference between the higher plan and the lower priced Plan. If switching to the lower-priced Plan, the new price will be charged at the end of the 30-day Term.
Overage charges under new Plans
Any Overage calculation for a previous Plan is superseded by the Plan Limits of the new Plan. As a benefit, any Overage calculations made during the 30-day Term including before the upgrade will only be calculated on the basis of the new Plan. If, however, the Customer chooses a Plan with lower Plan Limits, any Overage incurred because of lower Plan Limits is immediately charged.
Any changes in pricing of Plans will not come into effect until the end of the Customer's current 30-day Term and will be preceded by an announcement by the Service.
As part of the Service, a user-adjustable reporting page is provided to help the Customer keep track of external usage of their Content. Where the information is provided in graphic or chart format, the information is an approximate representation of usage and may not be exact or may be rounded to the nearest Minute. (Actual billing is calculated to the second).
Billing is provided to the Customer through a Billing History page that provides a history of every transaction made by the Customer with the Services and through invoice issued by email at the time of purchase. Any questions about billing can be addressed to [email protected].
Accounts are individual
Except where specified by separate agreement, the account held by the Customer whether Active or Suspended will be used solely by the Customer and may not be passed through or shared with a Third Party.
Passwords and login information are created by the Customer at Account registration and the security of such is the sole responsibility of the Customer. Should any logins or other security be compromised by a Third Party it is the responsibility of the Customer to inform Clipstream so that steps can be taken to prevent abuse of Content, streaming or the Service. Steps taken to rectify a security breach may include temporary suspension of the Account and revoking of login information pending identification of the Customer. If there are any security concerns please immediately inform Clipstream through [email protected].
Customer contact information
The Customer is solely responsible for keeping current their contact information as shown in their profile.
Third Party networks, APIs, Software, hardware
Where the Customer uses Third Party networks, APIs, Software or hardware not offered by Clipstream in order to access the Service, the customer must warrant that none of these will in any way impact on the security or normal operation of Clipstream, the Service, the Accounts, Customer Data or Content of its Customers.
Bots, automated software
The Customer warrants that they will not knowingly allow access through their Account any automated software, bots or other uncontrolled applications. Clipstream may at any time stop, block and remove any process, software or Account deemed harmful to the operation of the Service or to the Content and information of other Customers.
Embed Code / Link
Clipstream provides Embed Code that enables the sharing of Customer Content through the Clipstream Player. Clipstream is not responsible for any alteration, de-obfuscation, obfuscation, malicious or unintended misuse of the Embed Code or its Links by the Customer or Third Parties.
CUSTOMER PROVISION FOR ACCESSING SERVICES
The Service relies on a standard of platform, technology and standards to offer optimal performance of its offerings to the Customer and End User with minimum requirements defined in the Documentation. Based upon these standards the Customer should obtain and operate systems, platforms, hardware and software that ensures compatibility with the Services.
Obscene, defamatory, discriminatory Content, and copyright violations
The Customer agrees to abide by the local, state, provincial, national and international law and regulations regarding obscene, defamatory or discriminatory Content or any Content that infringes on third party copyright, trademark or privacy or otherwise exposes Clipstream to legal liability. Clipstream reserves the right to terminate, restrict or otherwise withdraw from the Service any material or Accounts that are found to violate such Content laws (each a “Content Violation”). Customer shall indemnify and hold Destiny, its affiliates, directors, officers, employees, agents or contractors harmless from any claim brought against Destiny or any of its foregoing indemnitees alleging that copying, distribution or transmission of any Content uploaded by the Customer (or other related activities in connection with the Services) violates a third party copyright anywhere in the world or is otherwise a Content Violation. This indemnity shall survive expiration or termination of this TOS and/or Customer’s use of the Clipstream System. Customer hereby grants Destiny a non-exclusive, world-wide, royalty-free, transferrable right, with the right to sublicense, to make copies of, Encode, Decode, distribute, transmit and publicly perform the Content that Customer uploads into the Clipstream System solely in connection with providing the Services to Customer.
No Claims on Customer Content
Clipstream provides as a Service a hosting network and does not make any claims on ownership, copyright or natural rights to Content uploaded to Customer Accounts or other parts of the Service.
Copyright / DMCA
Clipstream respects laws and norms regarding intellectual property rights including the Digital Millenium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). Should any material hosted on Clipstream be considered a violation of the copyright, any DMCA take-down requests should be made to [email protected] with subject line "copyright investigation". Customer consents to any take-down demand of Customer Content that Destiny decides to comply with in its sole and absolute discretion.
After uploading, Clipstream Encodes Customer Content into the proprietary Clipstream format and may keep copies of original sources purely for streaming, testing and conversion purposes and in no way shares Customer Content with other Customers or Third Parties except in connection with the provision of the Services. Due to the nature of CDN and cloud computing, Customer acknowledges that multiple copies of Customer Content associated with the Customer's Account may be created or transmitted to and reside on multiple servers and/or networks as part of the Service.
Backups and original sources
Clipstream does not guarantee it will create backups of the original video / audio source. It is the Customer's responsibility to safeguard their original sources.
In the event of Account termination or Cancellation, Clipstream does not guarantee any backup, transfer or other remediation method to preserve the Customer's Content. Clipstream Encoded Content is not available for streaming on any other service except by separate agreement.
CHANGES TO TERMS OF SERVICE
Clipstream reserves the right to change the TOS, Plan or Payment terms in whole or in part within 30 days’ notice. Notice will be provided either in email and/or on the Destiny's Website. Customer’s continued use or hosting of Content on the Clipstream System shall constitute assent to such changes.
Any changes in Payment Plan or Overage calculation that is made while the Customer is in mid-Term will take effect at the start of the next Term or as specifically expressed in a separate agreement.
CANCELLATION AND TERMINATION OF SERVICES
No refunds on Plan fees will be offered for Suspension or Cancellation of Services even should the Cancellation occur during a Term. Any Overage fee will be calculated up until the point of Cancellation or Suspension and shall be due and payable upon such Cancellation or Suspension..
Customers may choose to Suspend streaming services at any time and maintain their Content for reactivation later. Once an Account is Suspended, all Content will no longer be streamed and any Embedded videos on outside websites will not be playable. Any Overage will be charged and due and payable immediately but no other charges will be made while the Account is Suspended. Customers can return to their Account and administrate it at any time and may reactivate streaming by choosing an existing Plan and paying in full any fees due.
Content in Suspended Accounts
Content in Suspended Accounts may be accessed by the Customer at any time. However, Clipstream has no provision for the archiving or backup of Content except within the Clipstream website in the Clipstream format. Content in Suspended Accounts will be kept for a maximum of one year and then the Account is Cancelled.
Either the Customer or Clipstream may choose to stop Services entirely and terminate all Content, Account information and sign in ability from a Clipstream Account. To do so, contact [email protected].
Cancellation is permanent. Upon cancellation there will be no provision for the backup or maintenance of Customer Content, data or other information.
CLIPSTREAM, THE SERVICE, INTELLECTUAL PROPERTY
Clipstream, the Clipstream System, the Clipstream player, Clipstream website, Branding and Service embodies valuable intellectual property of Destiny, including copyrights, patent rights, and trade secrets. Customer hereby disclaims any ownership thereof. By paying to access the Service, Customer does not become the owner of it or licensee of the trade secrets or code embodied in the Service or Clipstream System. Subject to the license expressly granted above, Customer obtains no right, title, interest or other license in or to the Clipstream System, Software or Service, including but not limited to any copyright, patent, trade secret, trade-mark, or other proprietary rights therein. All whole and partial copies of the Clipstream SYstem, Software or Service remain the property of Destiny and will be considered part of the Clipstream System, Software or Service for the purpose of this Agreement. You agree that the Clipstream System, Software and Service embodies valuable trade secrets of Destiny that provide Destiny competitive advantage in its market, and that violation of Destiny's intellectual property will cause irreparable harm.
No alteration of trademarks, copyright notices, agreements, legal notices or branding within the Clipstream Service is permitted. You may not use the CLIPSTREAM trademark except as permitted in Destiny's trademark usage guidelines for indicating that Content is Clipstream compatible. Any goodwill arising from use of the "Clipstream" trademark shall inure to the sole benefit of Destiny.
Destiny does not warrant that the Clipstream System, Software, or Service will function in accordance with related Documentation in every combination of hardware platform, Software environment, and System configuration. Customer acknowledges that Software bugs are likely to occur when the System or Service is used in your Customer’s particular application. Customer therefore accepts the responsibility of satisfying yourself that the System and Service is suitable for Customer’s intended use. Destiny is not responsible for media defects that result from accident or abuse. Destiny has no obligation under this TOS to provide maintenance, support, or training.
THE CLIPSTREAM SYSTEM, SOFTWARE AND SERVICE ARE PROVIDED "AS IS" WITHOUT OTHER WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OR USE OF THE CLIPSTREAM SYSTEM, SOFTWARE OR SERVICES. NOTHING STATED IN THIS AGREEMENT OR ELSEWHERE WILL IMPLY THAT THE OPERATION OF THE SYSTEM, SOFTWARE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. OTHER WRITTEN OR ORAL STATEMENTS BY DESTINY, ITS REPRESENTATIVES, OR OTHERS DO NOT CONSTITUTE WARRANTIES OF DESTINY.
IN NO EVENT WILL DESTINY OR ITS OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS (COLLECTIVELY "ITS REPRESENTATIVES") BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, ANY USE OR INABILITY TO USE THE CLIPSTREAM SYSTEM, SOFTWARE OR SERVICE, OR ANY CLAIM MADE BY A THIRD PARTY, EVEN IF DESTINY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF DESTINY AND ITS REPRESENTATIVES FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY YOU TO DESTINY FOR THE SERVICE FOR THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO ANY ALLEGED DAMAGE OR CLAIM. DESTINY AND ITS REPRESENTATIVES' LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL OF DESTINY'S AND ITS REPRESENTATIVES' PAYMENTS IN SATISFACTION OF THEIR LIABILITIES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM, OR A FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND/OR LIMITATIONS OF IMPLIED WARRANTIES, SO, TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
ALL LIMITATIONS OF LIABILITY SET FORTH IN THIS TOS SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THE TOS WITH CUSTOMER AND/OR CUSTOMER’S USE OF THE CLIPSTREAM SERVICE.
Destiny Media Technologies, Inc.
1110 - 885 West Georgia
(Tel: (604) 609-7736; Fax: (604) 609-0611).
© 1999-2015, Destiny Software Productions Inc., Clipstream® and VideoClipstream® are trademarks of Destiny Software Productions Inc.