Terms of Service
ACCEPTANCE OF XTREAMR SOFTWARE TERMS AND CONDITIONS
These terms and conditions (“Terms”) govern your access to the information contained on the Xtreamr website (the “Website”), the Xtreamr application, and other related materials provided or made available by Xtreamr (the “Software”) that enable you to implement the Xtreamr live video streaming Software services offered by Xtreamr (the “Service”) on one or more website(s), web application(s), or mobile application(s) owned and controlled by you (“Your Device”) and/or participate in a third party broadcaster’s interactive broadcast (a “Third Party Broadcast”).
“Xtreamr”, “we”, “us”, “our”, and similar means Telefónica Digital Limited, the Xtreamr contracting party as the context requires.
“You” or “your” means you, the person who has downloaded and is using or uses the Software and Service and is the licensee under these Terms.
In order to use the Website, Software and Services, you are required to accept and to agree to be bound by these Terms.
We reserve the right to change, modify, or update the Software at any time, to impose additional restrictions or limitations on the Service (including, without limitation, the maximum period of time that data or other content will be retained by the Service), or to change, modify or update the fees charged for all or a portion of the Service. You agree that Xtreamr has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. Xtreamr may decide what features to include in the Service and whether to make them optional or mandatory. You further acknowledge that Xtreamr reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
We also reserve the right to change, modify or update the Terms at any time. If we revise the Terms, we will post the revised Terms on our Website, and you consent to receiving notice of any changes through such posting. If required by law, Xtreamr will also provide you notice of changes as provided in Section 16. If you do not agree to the revisions, you must cease to use the Software and remove the Service from Your Device. Your continued use of the Software or use of the Service on Your Device after the posting of the revised Terms means that you have accepted the new Terms.
2. NOT FOR BUSINESS USE
By accepting these Terms you accept that you are using the Service for your own personal use as an individual. You are prohibited from using the Service for business or commercial purposes or to make a profit. If you use the Service in this way it will constitute a material breach of these Terms. If you do intend to use the Software or Service for commercial purposes, please contact us at email@example.com and we will provide you with an appropriate set of terms and a fee structure (where appropriate).
a) Provided you comply with these Terms and with the payment requirements for the Services (as applicable), Xtreamr grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use the Software in order to display, interface and implement the Service on Your Device. You may not install or use the Software for any other purpose without Xtreamr’s prior written consent.
b) You acknowledge that the Software and the Service are protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S, England and Wales and other countries and that all ownership and intellectual property rights in the Software and the Service, including without limitation the trademarks XTREAMR and all related trade names, service marks, logos, domain names and the like (“Xtreamr Marks”) do and shall, as between you and Xtreamr, belong exclusively to the Telefónica group (including Telefónica Digital Espana S.L.U, the legal entity which is the proprietor of the Xtreamr trade mark). Except as expressly provided herein, these Terms grant you no right, title, license, or interest in any intellectual property owned or licensed by the Telefónica group, including (but not limited to) the Software, the Service or the Xtreamr Marks.
c) You will not sell, transfer, assign, rent, lease, or sublicense Xtreamr’s code, the Software, or the Service to anyone.
d) To the extent any features available through the Service are provided by other third parties, Xtreamr will make commercially reasonable efforts to communicate any policies, requirements, or guidelines of those third parties to you. You agree to follow those policies, requirements, or guidelines.
4. INSTALLATION OF THE APP ON YOUR DEVICE
a) The Service includes branding for Xtreamr. You agree not to remove, obscure, or alter any branding contained in the Service or any notice of any Xtreamr Marks.
b) You may not nor allow any third party to, copy, reverse engineer, decompile or disassemble Xtreamr’s code, the Software, or the Service, or build alternative methods to access the Service other than as provided through the Software (except to the limited extent such restrictions are expressly prohibited by applicable statutory law).
c) You will not obscure or cover any graphical element of the Service or otherwise interfere with the operation of the Software or Service.
e) When users interact with the Service, Xtreamr receives and stores certain personally non-identifiable information as well as aggregated user information and statistics, such as number of unique users, number of sessions and total minutes streamed. In consideration for Xtreamr’s provision to you of the Service you agree that Xtreamr may store such information itself or such information may be stored by and shared with Xtreamr affiliates, agents, service providers and current and prospective business partners. Xtreamr uses the foregoing information to provide, improve, market and enhance its Devices and services and for other lawful business purposes.
f) Xtreamr reserves the right to place limitations on access to the Software or Service. Xtreamr reserves the right to cap concurrent video streaming sessions conducted via Your Device and total number of minutes streamed on Your Device in its discretion.
g) These Terms do not entitle you to any support for the Software or the Service, unless you make separate arrangements with Xtreamr and pay all fees associated with such support (if any). Any such support provided by Xtreamr shall be subject to the Terms as modified by the associated support agreement.
5. CHARGE FOR SERVICES
Limited Services provided to you under these Terms will be provided to you free of charge. For services beyond a certain limit or additional/enhanced services fees will be payable. You will be notified when you reach these limitations and the Platform will request that you make an in-app purchase to continue using the Service. Payment will be made through the Apple or Android Store.
Xtreamr reserve the right to charge you for use of the Service at any point in the future, at which point it will request that you accept new terms and conditions and make a payment as a precondition to continuing to use the Service.
6. ARCHIVING AND STORAGE OF RECORDED COMMUNICATIONS
You acknowledge and understand that there are laws and regulations governing the electronic recording of communications and that Xtreamr will not be liable for any illegal use of the Service. You should carefully review your own circumstances when deciding whether to use the recording features of the Service and it is your responsibility to determine if the electronic recordings are legal under applicable laws. You agree to comply, and require that you comply, with all applicable laws relating to the privacy of communication for all parties to a conversation, including, when required, advising all participants in a recorded video stream that you are recording a video stream. In addition, you acknowledge that the storage of recorded communications is not guaranteed by Xtreamr and agree that Xtreamr will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with respect to the loss or deletion of recorded communications.
7. PROHIBITED USE
You are solely responsible for all content that you record and stream through your Device. You may not incorporate or use the Service in connection with Your Device if Your Device or any of the content you create and stream on Your Device (or if your use of the Service otherwise) falls within any description below:
a) Uses the Software in, or to develop, a product or service that competes with products or services offered by Xtreamr;
b) Contains adult entertainment, including pornography, erotic content, sexually explicit content, prostitution, or any other content not appropriate for general audiences;
c) Offers or promotes gambling, games of chance involving the payment of any consideration, or illegal sweepstakes or contests;
d) Promotes, encourages or facilitates any illegal activity, violates the law or violates the rights of any third party (including, without limitation, intellectual property rights or rights of privacy
e) Constitutes, promotes or is used for the purpose of dealing in: spyware, adware, or other malicious programs or code; counterfeit goods; unsolicited mass distribution of email; multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; libelous, defamatory, abusive, harassing or otherwise offensive content; body parts or bodily fluids; stolen products or items used for theft; fireworks, explosives, or hazardous materials; or weapons.
If you are unsure whether Your Device meets any description above, please email us at firstname.lastname@example.org so we can discuss whether your proposed use is acceptable.
8. YOUR COMPLIANCE OBLIGATIONS
a) Monitoring and Abuse. Xtreamr does not actively monitor the Service, but may elect to do so in its discretion. However, Xtreamr will not be responsible for any claim based on any commentary or content posted in the Service from your Device or any actions taken on your Device, including any claim that the content violates any person’s rights or is defamatory, libelous or otherwise illegal. You acknowledge that you are solely responsible for monitoring and controlling abusive or inappropriate behavior in the Service in connection with Your Device
b) Content. We do not claim any ownership rights nor licensed usage rights with respect to your content or posts (as defined below). You are solely responsible for all information, data, text, communications, recordings, videos, music, sound, photographs, messages or other materials (“content”) that you or anyone using your Device uploads, stores, posts, publishes, displays or otherwise transmits or uses (hereinafter, “posts”) in connection with the Service and for the legal consequences of making such posts. The following are examples of the kind of content and/or use that is illegal or prohibited by Xtreamr. Xtreamr reserves the right to investigate and take appropriate legal action against anyone who, in Xtreamr’s sole discretion, violates these Terms, including without limitation, removing the offending content from the Service, suspending or terminating the access of such violators and reporting you to the law enforcement authorities. Without limiting the foregoing, you shall not (nor shall you allow any third party to) use the Service to:
(i) stream or post any content that: is unlawful, harassing, tortious, defamatory, pornographic, libelous or invasive of another’s privacy; you do not have a right to transmit under any law or under contractual or fiduciary relationships; poses or creates a privacy or security risk to any person; infringes any intellectual property or other proprietary rights of any party; contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or in the sole judgment of Xtreamr, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Xtreamr or its Software users to any harm or liability of any type;
(ii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(iii) violate any applicable national or international law, or any regulations having the force of law;
(iv) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
(v) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
a) Disclaimer. You understand that the operation of the Service, including your content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to Xtreamr’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of your content. Xtreamr will have no liability for any unauthorized access or use of any content, or any corruption, deletion, destruction or loss of any content. You further acknowledge and agree that Xtreamr may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Xtreamr, its users and the public.
b) In addition to our rights to terminate or suspend Services to you as described in Section 11 below, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”).
10. REPRESENTATIONS AND WARRANTIES
You represent and warrant that: (a) you have the right to use, reproduce, transmit, copy, publicly display, publicly perform, and distribute any content or data on Your Device or that is used or incorporated with the Service, and that neither Your Device nor any related content violate the rights of any third party (e.g. copyright, patent, trademark, or other proprietary right of any person or entity), or any applicable regulation or law, including but not limited to any export, re-export, or import laws and the laws of any country in which your content or service is made available; (b) you have all necessary rights and authorizations to agree to these Terms and to use the Software and the Service as contemplated by these Terms; and (c) your agreement and compliance with these Terms and use of the Software and the Service will not violate any law, regulation or contractual obligation.
(a) You may terminate the Service at any time, for any or no reason, by deleting your account, unsubscribing from the Service, and disabling Your Device’s access of the Software and use of the Service.
(b) We reserve the right to suspend or terminate your right and license to access or use any or all of the Software and Service or terminate these Terms in their entirety (and, accordingly, your right to use the Service) at any time, for any or no reason by without notice. We may give you advance notice in accordance with the notice provisions set forth in Section 16 below, if we choose to in our sole discretion. Some of the reasons we may terminate are including, but not limited to:
if we determine that Your Device is harmful to or inconsistent with Xtreamr’s reputation and goodwill,
if you violate or we have reason to believe you have violated any provision of these Terms, including in particular Section 7,
if there is an unusual spike or increase in your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service;
if we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or
if subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
Immediately and without notice if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism.
c) Upon our suspension of your use of any Services, in whole or in part, for any reason you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and all of your rights with respect to the Services shall be terminated during the period of the suspension.
c) Upon any termination of these Terms or your access to the Service, for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all rights and licenses granted by Xtreamr to you herein shall terminate, (iii) you shall immediately remove the Service from Your Device and remove all copies of the Software from all computers, hard drives, networks, and other storage media, (iv) all of your content on the Service (if any) may be permanently deleted by Xtreamr. Notwithstanding anything to the contrary in these Terms, the following provisions shall survive and remain in full force and effect following any termination of the parties’ obligations under these Terms: Sections 10, 12, 13, 14, 15, and 17.
12. NO XTREAMR WARRANTIES
XTREAMR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR THE SERVICE COMPLIES WITH ANY LEGAL REQUIREMENTS, IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS (INCLUDING WITHOUT LIMITATION SERVICE SUSPENSIONS), OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE SOFTWARE AND THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND XTREAMR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LEGALITY, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. YOUR USE OF THE SOFTWARE AND THE SERVICE ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THEIR USE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OR CORRUPTION OF DATA.
13. LIMITATION OF LIABILITY
OUR LIABILITY SHALL NOT BE LIMITED TO YOU IN RESPECT OF DEATH OR PERSONAL INJURY TO ANY PERSON RESULTING FROM OUR OWN NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION, AND ANY OTHER TYPE OF LIABILITY WHICH WE CANNOT EXCLUDE OR LIMIT UNDER THE LAWS OF ENGLAND AND WALES.
XTREAMR SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, DEVICE LIABILITY OR OTHERWISE) (i) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SOFTWARE OR THE SERVICE, ANY SERVICE SUSPENSION, OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT XTREAMR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) FOR ANY AMOUNT IN EXCESS OF £100.00 (ONE HUNDRED POUNDS).
14. INDEMNITY AND WAIVER
You agree to indemnify, defend, and hold Xtreamr and its affiliates, officers, directors, agents, service providers, partners, and employees harmless from any claim, demand or allegation made by any third party, and all related losses, damages, liabilities, costs and expenses (including legal fees), that it is any way related to:
your use of the Software or the Service;
use of the Service by the users of Your Device;
Your Device, including any content, services or advertisements on Your Device or that you incorporate with the Service;
any claims for copyright infringement, defamation, invasion of privacy or right of publicity arising out of or in connection with any unauthorized use of the Service; and
your breach of any representation, warranty or covenant included in these Terms.
The foregoing indemnity provision shall be in addition to and not in lieu of any other indemnification obligations set forth in these Terms.
15. GENERAL INFORMATION
These Terms govern your use of the Software and the Service and constitute the entire agreement between you and Xtreamr regarding the subject matter hereof. These Terms supersede any prior agreements between you and Xtreamr relating to your use of the Software and the Service (including, but not limited to, any prior versions of these Terms). The failure of Xtreamr to exercise or enforce any right or provision of these Terms does not constitute a waiver of that right or provision, and a waiver of any default is not a waiver of any other default. If a court of competent jurisdiction finds any provision of these Terms to be invalid, the provision shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the parties’ original intentions as reflected in the provision, and so that the other provisions of the Terms remain in full force and effect. All headings in the Terms are for convenience only and have no legal or contractual effect. The Terms are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without Xtreamr’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Xtreamr expressly reserves and shall have the right to assign the Terms and to novate any of its obligations hereunder.
We may send you any notices, including those regarding changes to these Terms, to the email address you provided when you downloaded the app or through any other reasonable means. Any notices to Xtreamr must be sent to Xtreamr, Telefónica Digital Limited, 20 Air Street, London, W1B 5AN via first class or air mail or overnight courier and are deemed given upon receipt.
17. GOVERNING LAW
These Terms shall be governed by the law of England and Wales. You hereby consent to the exclusive jurisdiction of the courts of England and Wales to resolve any disputes arising under these Terms.
We know your privacy is important to you. It’s important to us too.
Who Are We?
Telefonica Digital is part of the Telefonica group of companies (together the “Telefonica Group Companies” or “Telefonica Group”).
How do we use information collected from you?
We want to give you and all of our users the best possible service and an overall positive user experience. That is why we use the Personal Information we collect from you in the following ways:
• To provide, maintain, tailor and improve the Xtreamr service;
• To get in touch to tell you about the Xtreamr service including, for example, service or security related issues, upcoming changes and improvements, and to let you know about our other products and services you might like;
• To verify your account access for security purposes;
• To help you with questions you may have about the Xtreamr service;
• To develop new products and services;
• To protect Telefónica Digital and people that use our services;
• To anonymise and then to aggregate information about how you and other Xtreamr users use the service (“Aggregate Data”) to identify trends and better understand user behaviour. When we say that Aggregate Data is “anonymous” what we mean is that it will not contain information from which you may be personally identified or contacted in any way.
• To better understand your behaviour in order to personalize and improve the Xtreamr service for you.
What information do we collect from you?
We collect information that you give us and information that we get from your use of the Xtreamr service:
• Registration Information: when you sign up to Xtreamr via Facebook or Google, Facebook or Google will ask you to give some personal information including your name, profile picture, age, gender and email address. We are not keeping any copy of this in our servers. Facebook will ask for your approval when you sign into the app.
• Your Videos. We will create a video based on the live content which was part of the Xtreamr session. If you initiate the an Xtreamr session, we will offer you the possibility to download or share the video. If you do neither, we will destroy the video within 72 hours, so it will be no longer available in our servers.
• Activity. When you use the Xtreamr service, Facebook or Google might also collect information about your activity like the last time you accessed the service, the posts you make, posts you are tagged in and posts people make on your user’s time line, video you posts. We don’t store or process that data in any way. As for the registration data, Facebook or Google will ask for your approval.
• Location data: we are processing location data in order to give users the possibility to join others’ streams that are in the vicinity. If the user accepts, we will also save the location of the video.
You can find more information about privacy in Google Analytics here:
https://www.google.com/policies/privacy/partners/ Google will have access to the information gathered from Google Analytics to improve its own products and services.
Who do we share your Personal Information with?
We don’t share your Personal Information with other organizations or individuals outside of our company, except:
• With carefully selected third parties who will only use the Personal Information in a manner and for purposes specifically agreed by us;
• We sometimes share Aggregate Data with third parties, including trusted advertisers, content providers and business partners or prospective business partners, to give them a better understanding of our business, services and how they are used.
• When we have a good-faith belief that it is reasonably necessary to:
o meet any applicable law, regulation, legal process or enforceable governmental request.
o enforce applicable Terms of Service, including investigation of potential violations.
o detect, prevent, or otherwise address fraud, security or technical issues.
o protect against or prevent harm to the rights, property or safety of Telefónica Digital, our users or the public as required or permitted by law.
• With a company that buys us in the event that we are involved in a merger, acquisition or asset sale, in order to continue serving you and others.
• With trusted third parties, if you have specifically indicated your willingness to receive information about their additional products or services.
• We may transfer, and you agree to allow us to transfer, your Personal Information to Telefonica Group Companies located outside the European Economic Area.
How long do we keep your Personal Information?
What else do we want you to know?
Videos and Shared Content
The Xtreamr service allows content to be live streamed, published and shared between and among you and others via social channels you select. We don’t have any control over the collection and use of your personal information made by our users once you’ve put it out there. Please do not share any Personal Information with any other users that you’d rather keep private.
We do not intentionally collect Personal Information from children. The Xtreamr service is not directed or intended for children. If you are a child, you should not register and use the TEFAPP service. If you are the parent or guardian of a child user, please contact Telefónica Digital at email@example.com so that we may delete and remove such user’s Personal Information from our system.
Telefónica Digital has technical and organisational measures in place to protect against the loss, misuse, alteration, unauthorised access or theft of the Personal Information. We use industry standard efforts to safeguard the confidentiality of the information stored in our platform. However, no method of transmission over the Internet is 100% secure. While we strive to protect your Personal Information, unfortunately, we cannot 100% ensure the confidentiality of the communication of any information that you transmit to us or any information that you receive from the Xtreamr service.
Effective Date: 26th February 2016. Updated 9th September 2016