These Terms of Service ("Terms") constitute a legally binding agreement ("Agreement") between you (“you” or “User”) and Company (as defined below) governing your access to and use of the Company’s paid functionality of DA Platform known as “DA.Viewers” (“DA.Viewers”).
These Terms shall be read alongside with the Terms of Service of DA Platform accessible at https://www.donationalerts.com/terms-of-service. All terms not defined herein shall be read as defined in the Terms of Service of DA Platform.
PLEASE READ THIS AGREEMENT CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING FROM OR USING THE DA.VIEWERS, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT; AND (B) HEREBY CONFIRM THAT YOUR AGE IS SUFFICIENT FOR SUCH USE UNDER THE APPLICABLE LAWS AND/OR YOU HAVE ALL NECESSARY CONSENTS (E.G. PARENTAL CONSENTS) IN FULL COMPLIANCE WITH THE APPLICABLE LAWS, INCLUDING FOR PURPOSES OF DATA PROTECTION LAWS, OTHERWISE THE USE OF DA.VIEWERS IS PROHIBITED.
IN THE EVENT THAT YOU, IN ACCORDANCE WITH THE LAWS OF YOUR STATE, ARE PROHIBITED TO USE DA.VIEWERS OR PORTIONS THEREOF OR THERE ARE OTHER LEGAL RESTRICTIONS, YOU DO NOT HAVE THE RIGHT TO USE IT. IN SUCH A CASE, YOU WILL BE SOLELY RESPONSIBLE FOR THE USE OF DA.VIEWERS OR THE RELEVANT PART OF IT ON THE TERRITORY OF YOUR STATE IN VIOLATION OF THE RELEVANT LEGISLATION.
Scope of Services
DA.Viewers is a part of functionality of the DA Platform that provides you, as a User, with a possibility to activate additional previously inactive features, data and commands of DA Platform while supporting the Broadcasters, including, but not limited to the activation of additional paid functionality to communicate with the Broadcasters by voice-overs of Users’ messages sent to Broadcasters along with Donations. The text and any other content or input, used by Users while activating paid functionality of DA.Viewers, is deemed included in “User Content” as defined in the the Terms of Service of DA Platform accessible at https://www.donationalerts.com/terms-of-service.
The fee for the access to such inactive data and commands may differ based on the options that a User chooses within the interface of DA Platform and the available functionality of DA.Viewers. However, the fees for the access to functionality of DA.Viewers are paid through a separate transaction to Company and include applicable VAT and fees of payment services providers.
The provision of the right to use and the access to functionality of DA.Viewers are subject to the payment of applicable fees by a User. The additional paid functionality of DA.Viewers is provided to a User immediately after receipt of the payment for such functionality in full. All fees payable for the functionality of DA.Viewers are non-refundable, including, but not limited to the event if the User is dissatisfied with the DA.Viewers, except as expressly set forth in accordance with applicable legislation.
Except as expressly specified in these Terms (a) as the provider of the DA.Viewers, Company does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Broadcaster Content and does not participate in any communications between Broadcasters and Users, (b) Users are alone responsible for their User Content, (c) Company is not and does not become a party to or other participant in any contractual relationship between Broadcaster and User, nor is an insurer, (d) Company is not acting as an agent in any capacity for Broadcaster or User except as expressly set forth in Section 3 below herein.
While Company may help facilitate the resolution of disputes, Company has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Broadcaster Content or User Content (ii) the performance or conduct of any Broadcaster or User or third party. Company does not endorse any Broadcaster or Broadcaster Content or User or User Content. You should always exercise due diligence and care when deciding whether to communicate or enter into any kind relationship with Broadcasters or Users.
If you choose to use the DA Platform and DA.Viewers, your relationship with Company is limited to being an independent, third-party, and not an employee, agent, joint venturer or partner of Company for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Company.
The DA Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Company is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Company of such Third-Party Services.
Due to the nature of the Internet, Company cannot guarantee the continuous and uninterrupted availability and accessibility of the DA Platform. Company may restrict the availability of the DA Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the DA Platform. Company may improve, enhance and modify the DA Platform and introduce new services from time to time.
Subject to your compliance with these Terms, Company hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable, free of charge or for fee (as defined herein) license to use the DA Platform within its purposes and functionality.
Eligibility, Using the DA Platform
Company may make the access to and use of the DA Platform, or certain areas or features of the DA Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria.
User verification on the Internet is difficult and Company does not assume any responsibility for the confirmation of any Broadcaster or User identity except expressly provided by applicable law. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, Company may, but have no obligation to (i) ask Broadcasters or Users to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of them, (ii) screen Broadcasters and Users against third party databases or other sources and request reports from service providers, and (iii) where Company has sufficient information to identify a Broadcaster or User, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
The access to or use of certain areas and features of the DA Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the DA Platform, including DA.Viewers, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
Company may permit you to register for and log onto the DA Platform via certain third party API, such as by using Twitch account. If you log in via such API, the profile information connected to the account you use to log into the DA Platform, including your name, may be used by Company in order to provide and support your Account. You also acknowledge and agree that Company may publish information regarding your use of the DA Platform to and in connection with any such third party API with which you use the DA Platform (unless you tell Company otherwise).
DA Platform Content. You acknowledge and agree that DA Platform and any content that Company makes available on or through DA Platform including any trademarks, logos and any service names (“DA Content”) and all associated intellectual property rights, are the exclusive property of Company and/or its licensors or suppliers that may not be copied, imitated or used, in whole or in part, without the prior written permission of Company. Any authorized use of these DA Content must be in accordance with any guidelines that Company may provide you from time to time. You may not use any metatags or any other hidden text utilizing "DA", “DA Platform” or any other name, trademark or product or service name of Company without Company’s prior written permission. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Company.
Content. If Company allows you to publish any Content, then you are solely responsible for your Content and the consequences of publishing it. By uploading/ publishing / making available your Content on DA Platform and/or using DA Platform in connection with your Content, you represent and warrant that: (1) you are the creator and owner of the certain Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your Content does not and will not (a) violate any applicable law, rule or regulation or (b) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (c)slander, defame, or libel any other person or (d) promote violence, the use of firearms, or unlawful subject matter or activities or (e) be defamatory, libelous, deceptive, pornographic or sexually explicit; (3)your Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code or (4) unless you have received prior written authorization, your Content specifically does not contain any prerelease or non-public beta software or game content or any confidential information of Company or third parties. Company reserves all rights and remedies against any Broadcasters who breach these representations and warranties.
Any Content, may in its entirety or in part be protected by copyright, trademark, and/or other laws of the certain state. You acknowledge and agree that any Content, including all associated intellectual property rights, are the exclusive property of the respective owners. You shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the DA Content or any Content. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the DA Content or Content, except to the extent you are the legal owner of certain Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in these Terms.
License to use Content. If you distribute or make available any Content through the DA Platform, you hereby grant to Company a worldwide, non-exclusive, royalty-free, perpetual, transferable and fully sublicensable right to use, host, convert for streaming, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit your Content, in any form, format, media or media channels now known or later developed or discovered. You grant Company and our sublicensees the right to use the name that you submit in connection with that content, if Company or they choose. This clause shall survive the termination of the Terms on any reason except for the cases when it is prohibited by applicable law.
Limitation of liability for Content. Company takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Company liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the DA Platform is at your own risk. Enforcement of the Content or conduct rules set forth in these Terms of Service is solely at Company's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the DA Platform will not contain any content that is prohibited by such rules. As a provider of interactive services, Company is not liable for any statements, representations or Content provided by our users in any public forum, personal home page or other Interactive Area. Company does not endorse any Content or any opinion, recommendation or advice expressed therein, and Company expressly disclaims any and all liability in connection with Content. Although Company has no obligation to screen, edit or monitor any of the Content posted in any interactive area, Company reserves the right, and has absolute discretion, to remove, screen or edit any Content posted or stored on the DA Platform at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any Content you post or store on the DA Platform at your sole cost and expense. Any use of the interactive areas or other portions of the DA Platform in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the interactive areas and/or the DA Platform.
At all times Company reserves the right to delete or block any Content in case of any breach or alleged breach of these Terms of Service.
Code of conduct
You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the DA Platform. In connection with your use of the DA Platform, you will not and will not assist or enable others to:
Further, BY USING THE DA PLATFORM, INCLUDING YOU AGREE NOT TO post, upload to, transmit, distribute, store, create or otherwise publish through the DA Platform or use in relation to DA Platform any of the following:
If you feel that any person you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Company by contacting us with your police station and report number (if available); provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
Term and Termination, Suspension and other Measures
This Agreement shall be effective from the moment a User first uses any features of DA.Viewers and shall last until terminated in accordance herewith.
If you are a User you may terminate this Agreement by stopping access to DA Platform.
Without limiting your rights specified below, Company may terminate this Agreement for convenience at any time by notifying you via email or by any other means.
Company may immediately, without notice terminate this Agreement if (i) you have materially breached your obligations under these Terms or other related documents, (ii) you have violated applicable laws, regulations or third party rights, or (iii) Company believes in good faith that such action is reasonably necessary to protect the personal safety or property of Company, Broadcasters or Users, or third parties (for example in the case of fraudulent behavior of a Broadcaster or User).
In addition, Company may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms or related documents, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the account registration or thereafter, (iv) you and/or your Broadcaster Content, User Content at any time fail to meet any applicable quality or eligibility criteria, (v) Company has received complaints about your performance or conduct, or (vi) Company believes in good faith that such action is reasonably necessary to protect the personal safety or property of Company, Broadcasters, Users, or third parties, or to prevent fraud or other illegal activity
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Company and an opportunity to resolve the issue to Company's reasonable satisfaction.
When this Agreement has been terminated, you are not entitled to a restoration of your Account or any of your Content. If your access to or use of the DA Platform has been limited or your Account has been suspended or this Agreement has been terminated by Company, you may not register a new Account or access and use the DA Platform.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE DA PLATFORM AND RESPECTIVE FEATURES AND DA CONTENT ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY COMPANY; (B) COMPANY, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS (‘’COMPANY’S PARTIES") DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE DA PLATFORM, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) COMPANY DOES NOT REPRESENT OR WARRANT THAT INFORMATION, CONTENT OR MATERIALS ON THE DA PLATFORM ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; (D) COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE COMPANY ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE COMPANY SERVICE SAFE, COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE DA PLATFORM OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE DA PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE TERM "COMPANY" INCLUDES COMPANY'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE COMMERCIAL BILL COLLECTION AGENT OF BROADCASTER AS SPECIFIED HEREIN, COMPANY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY BROADCASTER OR OTHER THIRD PARTY. COMPANY DOES NOT HAVE ANY DUTIES OR OBLIGATIONS AS AGENT FOR EACH BROADCASTER EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THESE TERMS, AND ANY ADDITIONAL DUTIES OR OBLIGATIONS AS MAY BE IMPLIED BY LAW ARE EXPRESSLY EXCLUDED.
DA.VIEWERS IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. THEREFORE, USERS AKNOWLEDGE THAT DA.VIEWERS MAY NOT MEET THEIR INDIVIDUAL PREFERENCES AND EXPECTATIONS. COMPANY WILL MAKE ALL COMMERCIALLY REASONABLE EFFORTS TO ENSURE CONTINUOUS OPERATION OF DA.VIEWERS, ACCORDINGLY USERS AKNOWLEDGE THAT DA.VIEWERS IS NOT ERROR-FREE AND MAY BE INTERRUPTED.
COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF DA.VIEWERS’ CONTENT. THE COMPANY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF ACCURACY, RELEVANCE, SAFETY, FREEDOM FROM VIRUSES, FREEDOM FROM BUGS, LEGALITY AND/OR RELIABILITY OF INFORMATION, DATA, MATERIALS. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH PAID FEATURES, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN THE USER AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, THE USER SHOULD USE HIS/HER BEST JUDGMENT AND EXERCISE CAUTION WHERE ARROPRIATE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL COMPANY OR THE COMPANY’S PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE DA PLATFORM, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM COMPANY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO COMPANY'S RECORDS, PROGRAMS OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE DA PLATFORM EXCEED 100 EURO AMOUNT.
You agree to indemnify, defend, and hold harmless Company and Company’s Parties from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your breaches (for example, your violation of the rights of any third party, any violation by you of this Agreement or any other applicable agreements in relation to the DA Platform using), or any breach of the representations, warranties, and covenants made by you herein. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate with Company's defense of these claims. Company will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. The forgoing indemnity includes, without limitation, any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your Promotions or Content.
This Agreement shall be governed and construed by the law of England and Wales. All disputes arising in connection with this Agreement are subject to mandatory pre-trial settlement by the Parties, and in case of failure to reach agreement during the pre-trial settlement of the dispute – in the court having jurisdiction at the location of Company.
Modification of these Terms
Company reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time (for example to reflect updates to the DA Platform or to reflect changes in the law). If Company changes these Terms, Company will provide you notice of these changes, such as by sending an email, posting a notice on the DA Platform or updating the "Last Updated" date above. Please check these Terms and any related documents periodically for those changes. Your continued use of the DA Service after the posting of changes constitutes your binding acceptance of such changes. We will always make a reasonable effort to notify you if Company does change these Terms. The current version of these Terms is available at https://www.donationalerts.com/terms-of-service/viewers.
Waiver. The failure of either you or us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by the relevant party.
Severability. If any provision of this Agreement or any guidelines is held to be unlawful, void, or for any reason unenforceable, then for both you and us that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
Assignment. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
Survival. Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration. После расторжения настоящего Соглашения любое положение, которое по своему характеру или условиям должно продолжить действовать, сохраняет свою силу и действие после такого расторжения или истечения срока действия, включая в том числе Раздел 3.
Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions of it.
Entire Agreement. This Agreement, together with any other relative documents and guidelines, is the entire agreement between you and Company relating to the subject matter herein and will not be modified except in writing, signed or otherwise agreed to by both parties, or by a change to this Agreement or Guidelines made by Company as set forth in Section 13 above.
Claims. If You disagree with the above, We encourage you contact us as soon as possible after you start using the DA Platform at email@example.com since otherwise they will be binding on you after a reasonable time period (usually 30 days unless there are exceptional circumstances).
YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE DA PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The DA Platform is offered by My.com B.V. (hereinbefore referred to as “Company”), located at: Barbara Strozzilaan 201, 1083 HN, Amsterdam, the Netherlands.
You may register your own cell phone number in your account. Such registration shall mean your full consent to SMS receiving from Company. You shall have an opportunity to change such SMS settings in your account. Mentioned functionality may be provided by MY.COM B.V. at any time.
Only the English version of this document has legal effect. Any translations of this document to other languages are provided for your convenience only.
© My.com B.V. | 2020