Marshmallow Streaming - Terms & Conditions
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Welcome to Marshmallow Streaming! Your access and use of the features, products and services provided by Marshmallow Streaming, LLC (“Marshmallow Streaming”, “we”, “us” or “our”) and those provided through our Site (individually and collectively, the “Service”) are subject to the terms and conditions in these Terms of Service (these “Terms”). These Terms constitute a legal agreement between you and Marshmallow Streaming and are sometimes referred to herein as the “Agreement”.
Marshmallow Streaming performs in-home consultation and technical support for equipment and services for internet, cable, and media streaming. A Customer will use our Site in order to select the desired services and set up a time tor the technical support consultant (“Tech”) to perform these on-demand technical support services (a “Booking”). Customers and any other users of the Service are collectively referred to herein as “Users”. Our Products, Services, additional offerings, and the Site are collectively referred to as the “Platform”.
Please note that the Platform is operated in the United States and is not available to, and should not be accessed and used by, residents outside of the United States.
By agreeing to these Terms, including by a click-through or other agreement, or by using any aspect of the Platform, you expressly acknowledge that (a) you have read these Terms and agree to all of their terms and conditions, (b) you are 18 years of age or older, (c) you have the right, authority and capacity to enter into this Agreement, and (d) if you are entering into this Agreement on behalf of an entity, you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You further agree to receive all communications, agreements and notices that we provide in connection with the Platform electronically, including by e-mail, SMS text message, or by posting them on the Site or otherwise making them available through the Platform. You agree that all communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You must agree to these Terms in order to use the Platform, and if you do not accept these Terms then you may not use any aspect of the Platform.
These Terms contain important language governing your use of the Platform. They address, among other things, information about how we provide the Platform, how we or you may terminate the Services and/or access to the Platform, the requirements imposed on you when managing your User account (an “Account”) and how we handle disputes (which includes a class action waiver and binding arbitration in most cases).
Marshmallow Streaming may update these Terms at any time in its sole discretion, and Marshmallow Streaming will post the updated version of these Terms on the Site. You understand and agree that you will be deemed to have accepted the updated Terms if you use any aspect of the Platform after the updated Terms are posted. If at any point you do not agree to any portion of these Terms, you must immediately stop using the Platform. Disputes arising under these Terms will be resolved in accordance with the version of these Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
- Provision of the Platform
You are responsible for any Internet connection, data usage and telecommunications fees and charges that you incur when accessing the Platform. You acknowledge and agree that Marshmallow Streaming may make changes to any aspect of the Platform at any time without notifying you in advance.
- Termination of the Platform
Marshmallow Streaming reserves the right to deny use of the Platform to any person or entity at Marshmallow Streaming’s sole and absolute discretion. You acknowledge and agree that Marshmallow Streaming may stop providing any aspect of the Platform or restrict your use of the Platform at any time, without notifying you in advance, for any reason or no reason. If Marshmallow Streaming disables your access to your Account, you may be prevented from accessing the Platform, your Account details or any materials contained in your Account.
- User Accounts and Security
4.1. User Account. To access certain aspects of the Platform, you must have an Account. You can create an Account by completing the registration process on the Site.
You may be required to provide information about yourself as part of the registration process or your continued use of the Platform. You agree that any registration information that you submit to Marshmallow Streaming will be correct, accurate and up-to-date. You shall not select or use as a username a name (a) of another person with the intent to impersonate that person; (b) subject to any rights of a person other than you with appropriate authorization; or (c) that is otherwise offensive, vulgar or obscene.
4.2. User Account Security. Maintaining your Account security is very important. You are solely responsible for maintaining the confidentiality of your Account password and for all activities that are conducted via your Account. You agree to notify Marshmallow Streaming immediately if you become aware of any unauthorized use of your password or of your Account.
4.3. User Account Sharing or Transfers. Accounts are registered to you personally and may not be transferred at any time under any circumstances. You should not share your Account with, or disclose your password to, anyone else.
4.4. Deactivation by You. You have the right to deactivate your account at any time by contacting us directly. We may maintain a record of account and order history for deactivated accounts.
4.5. Termination by Marshmallow Streaming. Marshmallow Streaming may terminate your Account at any time for any reason or no reason, including if: (a) Marshmallow Streaming determines that you are (i) in breach of or otherwise acting inconsistently with these Terms or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to Marshmallow Streaming; (b) Marshmallow Streaming determines it is required by law to terminate your Account; or (c) Marshmallow Streaming decides to stop providing the Platform or critical portions of the Platform. When terminating your Account, Marshmallow Streaming may delete the Account and all the information in it. You have no ownership rights to your Account.
4.6. Effect of User Account Deactivation. If you voluntarily deactivate your Account, you may reactivate that Account at any time by contacting us via email or by telephone. Accounts terminated by Marshmallow Streaming for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated for any reason without the consent of Marshmallow Streaming, which may be withheld in Marshmallow Streaming’s sole and absolute discretion.
- Cancellation and Rescheduling
Our cancellation and rescheduling policies are posted on our website and will be provided to you at the time of scheduling your services. The cancellation and rescheduling policies may be updated from time to time without notice.
- Pricing and Payments
6.1. Fees and Payments. All prices, fees and other amounts for the Platform are set forth on the Site (the “Fees”). All amounts shall be expressed and paid in United States Dollars. All Fees are subject to change at any time without notice; no Fee is confirmed until the checkout process is complete. The Fees may include a platform fee, in which case such platform fee will be indicated as a line item at checkout. Except as otherwise expressly set forth herein or as expressly approved by Marshmallow Streaming in writing in its sole discretion, all payments made are final and non-refundable and a User shall not have the right to cancel its purchase for any reason. If you use PayPal or any other payment or financial mechanism (“Payment Provider”), the applicable Payment Provider agreement governs your use of such Payment Provider, and you should refer to that agreement, and not these Terms, to determine your rights and liabilities with respect thereto. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to us or our third-party payment processors must be accurate, current and complete. You will also be responsible for paying any applicable taxes relating to payments that you make. Marshmallow Streaming shall have no liability or responsibility to you or any other third party in connection with the accuracy of the Payment Provider information provided by you or your use of any Payment Provider (including any fees charged by such Payment Provider in connection with such use).
6.2. Payment Processing. When you make a Booking, we will place a hold on the credit card that you provide to us at the time of Booking, such hold in the amount of the anticipated charge for the applicable Booking. Upon your marking the Booking as complete via the mobile app for Techs or other method facilitated by Marshmallow Streaming such credit card will be charged if payment was not made via other means on the Platform. You may change the payment method at any time prior to job completion by contacting us. Fees for cancellations and rescheduled Bookings, in accordance with the cancellation and rescheduling policies referred to in Section 5, will be charged to the credit card provided at the time of Booking.
6.3. Failed Transactions. In the event that Marshmallow Streaming is unable to
successfully charge any linked payment instrument, Marshmallow Streaming will notify you via email
and/or within your account page on our Site, and you will be unable to initiate further orders or
transactions with your Account. Upon Marshmallow Streaming’s notification to you of such failure, you
agree to link a new, valid payment instrument as soon as possible but in any event within three (3)
business days. Your Marshmallow Streaming Account may be disabled until a valid payment instrument is
provided and the outstanding uncharged balance is resolved by Marshmallow Streaming. Marshmallow
Streaming is not responsible for any charges imposed by the issuer of your payment instrument as a
result of any failed charge by Marshmallow Streaming. To the extent that Marshmallow Streaming is unable
to successfully charge any payment instrument linked to your Account as payment for authorized
transactions for more than thirty (30) days, you understand and agree that Marshmallow Streaming may
employ a collection agency or other business in an effort to collect any outstanding debts and fees
associated with your User Account, and you will not contest the use of a third party to collect the debt
and fees owed to Marshmallow Streaming. You agree that you will be responsible for any legal, court,
arbitration or collection agency fees associated with rectifying your account and all monies owed
thereunder. You agree that Marshmallow Streaming, or any agency or business employed by Marshmallow
Streaming, has the right to contact you and your heirs via telephone, email or in-person using the
information you provided upon registration or during any contact with Marshmallow Streaming, in an
effort to collect any monies and fees owed under your account, whether specifically referenced in these
Terms or not, and such contact may be made in a manual or automated fashion.
- Restrictions and Conditions of Use
7.1. Use Restrictions. Marshmallow Streaming permits you to view and use the Platform solely for your own personal or limited commercial use, as applicable, in either case not inconsistent with the intended purpose of the Platform. Furthermore, you agree that you will not:
(a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Platform;
(b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Platform, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Marshmallow Streaming;
(c) make any false, misleading or deceptive statement or representation regarding Marshmallow Streaming or the Platform;
(d) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Platform (or any servers, systems or networks connected to the Platform) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Platform or any other person’s or entity’s use of the Platform (or any servers, systems or networks connected to the Platform);
(e) attempt to gain unauthorized access to the Platform, accounts registered to other Users, or any servers, systems or networks connected to the Platform;
(f) use the Platform for any commercial purpose unless consistent with these Terms and the intended use of the Platform;
(g) use the Platform to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful;
(h) use the Platform to upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or commercial electronic message;
(i) breach any agreements you enter into with any third parties;
(j) use the Platform for any unlawful, prohibited, abnormal or unusual activity as determined by Marshmallow Streaming in its sole discretion;
(k) use the Platform to engage in any activity that (i) constitutes harassment or a violation of privacy or threatens other people or groups of people; (ii) is harmful to children in any manner; (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (iv) violates any applicable law, ordinance, rule, regulation, treaty or self-regulatory guidelines;
(l) improperly obtain or attempt to improperly obtain any information or data from the Platform including, without limitation, email addresses or mobile phone numbers of other Users;
(m) intercept, examine or otherwise observe any proprietary communications protocol used by the Platform, whether through the use of a network analyzer, packet sniffer or other device; or
(n) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of the Platform.
8.1. Links from the Platform. The Platform may contain links to websites operated by independent third parties. Marshmallow Streaming provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of Marshmallow Streaming and Marshmallow Streaming is not responsible for the content available on the other websites or services. Such links do not imply Marshmallow Streaming’s endorsement of information or material on any other website and Marshmallow Streaming disclaims all liability with regard to your access to and use of such linked websites. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
8.2. Links to the Platform. Unless otherwise set forth in a written agreement between you and Marshmallow Streaming, you must adhere to Marshmallow Streaming’s linking policy as follows: (a) the appearance, position and other aspects of any link to the App or the Site may not be such as to damage or dilute the goodwill associated with Marshmallow Streaming’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Marshmallow Streaming; and (c) when selected by a User, the link to the Site must display the Site on full-screen and not within a “frame” on the linking website. Marshmallow Streaming reserves the right to revoke its consent to the link at any time and in its sole discretion (including any link on any social media networking platform). Furthermore, Marshmallow Streaming reserves the right to revoke or modify any link (including any vanity link) to the Platform or otherwise related to your Account (including any link on any social media networking platform).
- Marshmallow Streaming Intellectual Property
9.1. Trademarks. The Marshmallow Streaming name and logo are trademarks and service marks of Marshmallow Streaming. Unless permitted in a separate written agreement with Marshmallow Streaming, you do not have the right to use any of Marshmallow Streaming’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
9.2. Ownership. You acknowledge and agree that Marshmallow Streaming, or its licensors, owns all right, title and interest in and to the Platform, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Platform is protected by United States and international copyright laws. Further, you acknowledge that the Platform may contain information that Marshmallow Streaming has designated as confidential and you agree not to disclose such information without Marshmallow Streaming’s prior written consent.
9.3. Feedback. You may choose to, or Marshmallow Streaming may invite you to, submit comments, bug reports, ideas or other feedback about the Platform or any modifications, features or improvements thereto (“Feedback”). You agree that Marshmallow Streaming shall own any and all Feedback and Marshmallow Streaming shall have the right to use, in any manner and for any purpose whatsoever, any and all Feedback. You hereby assign to Marshmallow Streaming all right, title and interest that you may acquire in and to any Feedback.
9.4. Repeat Infringer Policy; Copyright Complaints. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of Users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Platform infringes any copyright that you own or control, you may notify Marshmallow Streaming directly using the “Contact Us” form.
Such notice must contain the following information:
- your address, telephone number, and email address;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the alleged infringing material is located;
- a statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
The Platform is operated by Marshmallow Streaming in the United States. In order for us to provide our services, you agree that we may transfer, use and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. If you choose to access the Platform from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws; provided, however, that the Platform is not available to, and should not be accessed and used by, residents outside of the United States.
- Utilizing Your Computer or Other Device.
Some of the benefits of the Platform require the Platform to access information on your computer or other applicable device. You hereby grant permission for the Platform to monitor your computer or other applicable device (including, but not limited to, your device’s memory) and to communicate information, including, without limitation, your Account information, to Marshmallow Streaming’s servers for the purposes of analyzing your device’s performance during use of the Platform. Additionally, the Platform will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Platform.
- NO ENDORSEMENT; LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
13.1. Although Marshmallow Streaming displays information about Techs and Users and may collect payments of Fees for Techs, such actions do not in any way constitute Marshmallow Streaming’s sponsorship or approval of any Tech. Marshmallow Streaming does not endorse or recommend any Tech, and you agree that Marshmallow Streaming is not responsible for the accuracy or completeness of information displayed through the Platform with respect to the Techs.
13.2. Marshmallow Streaming represents and warrants that the Services (a) will be performed in a good and workmanlike manner, using the degree of skill, care, and judgment consistent with customarily accepted good business practices, and (b) will be free from defects. This limited warranty is valid for a period of thirty (30) days following the date the Services were performed. To make a claim under this limited warranty for any Services performed, contact us at support@MarshmallowStreaming.com and we will arrange for a Tech to re-perform the Services. Such re-performance shall be the sole remedy for any claims made under this limited warranty.
13.3. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT, EXCEPT AS SET FORTH IN SECTION 14.2, (A) THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARSHMALLOW STREAMING EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, (C) MARSHMALLOW STREAMING MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE PLATFORM, AND (D) MARSHMALLOW STREAMING DOES NOT REPRESENT OR WARRANT THAT (I) YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (II) THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) YOUR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS; (IV) DEFECTS IN THE OPERATION OF THE PLATFORM WILL BE CORRECTED; OR (V) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
13.4. TECHS ARE NOT EMPLOYEES, REPRESENTATIVES, OR AGENTS OF MARSHMALLOW STREAMING. EXCEPT FOR CERTAIN REMOTE TECHNICAL SUPPORT, MARSHMALLOW STREAMING DOES NOT PROVIDE TECHNICAL SUPPORT SERVICES, AND DOES NOT EMPLOY OR ENGAGE INDIVIDUALS TO PROVIDE TECHNICAL SUPPORT SERVICES. USERS HEREBY ACKNOWLEDGE THAT MARSHMALLOW STREAMING DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A TECH’S WORK AND, EXCEPT AS SET FORTH IN SECTION 14.2, EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
13.5. CUSTOMER IS RESPONSIBLE FOR (A) OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS, IF ANY, THAT MAY BE REQUIRED TO BE OBTAINED FOR THE REPESECTIVE SERVICES TO BE PERFORMED, AND (B) CONFIRMING THAT ANY TECH PERFORMING SERVICES FOR SUCH CUSTOMER POSSESSES ALL REQUISITE PERMITS AND TRADE LICENSES THAT MAY BE REQUIRED FOR THE PERFORMANCE OF SUCH SERVICES. MARSHMALLOW STREAMING ASSUMES NO RESPONSIBILITY FOR A CUSTOMER’S FAILURE TO OBTAIN OR CONFIRM SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS. WE ENCOURAGE YOU TO CONFIRM ANY SUCH REQUIREMENTS AND TO ASK TO SEE A COPY OF ANY LICENSES IF APPLICABLE.
13.6. NEITHER MARSHMALLOW STREAMING NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “MARSHMALLOW STREAMING PARTIES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE MARSHMALLOW STREAMING PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH MARSHMALLOW STREAMING OR THE PLATFORM.
- LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARSHMALLOW STREAMING AND THE OTHER MARSHMALLOW STREAMING PARTIES SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PLATFORM, EVEN IF MARSHMALLOW STREAMING OR THE OTHER MARSHMALLOW STREAMING PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL THE LIABILITY OF MARSHMALLOW STREAMING OR ANY OF THE OTHER MARSHMALLOW STREAMING PARTIES EXCEED, IN THE AGGREGATE, THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE FEES ACTUALLY PAID BY CUSTOMER YOU FOR THE SERVICES.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
You agree to defend, indemnify and hold Marshmallow Streaming and the other Marshmallow Streaming Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Platform; or (b) your breach of these Terms or any other policies that Marshmallow Streaming may issue for the Platform from time to time. You further agree to cooperate as required by Marshmallow Streaming in the defense of any claim. Marshmallow Streaming reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Marshmallow Streaming.
- Governing Law; Jurisdiction
These Terms are governed by Illinois law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Marshmallow Streaming agree that, except as otherwise provided in Section 18 below, the state and federal courts located in Cook County, Illinois will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Platform and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Marshmallow Streaming shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
17.1. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Marshmallow Streaming as a result of these Terms or your use of the Platform.
17.2. Assignment. Marshmallow Streaming may assign its rights under these Terms to any person or entity without your consent. The rights granted to you under these Terms may not be assigned without Marshmallow Streaming’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
17.3. Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
17.4. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in Connection with these Terms, except as otherwise provided in Section 18.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
17.5. No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Marshmallow Streaming of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
17.6. Notices All notices given by you or required under these Terms shall be in writing and sent to support@MarshmallowStreaming.com.
17.7. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Platform, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
17.8. Equitable Remedies. You acknowledge and agree that Marshmallow Streaming would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
17.9. Entire Agreement. These Terms, including the documents referenced in these Terms, constitute the entire agreement between you and Marshmallow Streaming with respect to the Platform and supersede any and all prior agreements between you and Marshmallow Streaming relating to the Platform.