Colorcast—TUNED TO YOU!
Let’s get started.
Thank you for using the Colorcast platform, products, services and features we make available to you as part of the platform (collectively, the “Service”).
The Service allows you to discover, create, and share audio content (“Casts”), and provides a forum for people to connect, inform, comment, criticize, teach, and ultimately transform the live events’ viewing experience, by acting as a distribution platform for original content creators with original takes.
Your Service Provider
The entity providing the Service is Colorcast, Inc., a company operating under the laws of Delaware, located at 1200 Elm Street #207, Austin, TX 78703 (referred to as “Colorcast”, “we”, “us”, or “our”). References to Colorcast’s “Affiliates” in these terms means the other companies within the Colorcast, Inc. corporate group (now or in the future).
Your use of the Service is subject to these terms and Colorcast’s Safety, Copyright, Privacy, and End User License policies, which may be contained in part or in whole herein, may be updated from time to time, and are either now or will be in existence in the future (together, this “Agreement”).
Please read this Agreement carefully and make sure you understand it. If you do not understand the Agreement, or do not accept any part of it, then you may not use the Service.
Who may use the Service?
You must be at least 13 years old to use the Service.
Permission by Parent or Guardian
If you are under 18, you represent that you have your parent or guardian’s permission to use the Service. Please have them read this Agreement with you. If you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Service, you are subject to the terms of this Agreement and responsible for your child’s activity on the Service.
If you are using the Service on behalf of a company or organization, you represent that you have authority to act on behalf of that entity, and that such entity accepts this Agreement.
Your Use of the Service
Content on the Service
The content on the Service includes audio (for example live streaming voice and other sounds), graphics, photos, text (such as comments and scripts), branding (including trade names, trademarks, service marks, or logos), interactive features, software, metrics, and other materials whether provided by you, Colorcast or a third-party (collectively, “Content”).
Content is the responsibility of the person or entity that provides it to the Service. Colorcast is under no obligation to host or serve Content. If you see any Content you believe does not comply with this Agreement or any other of Colorcast’s terms, you can and should report it to us at https://colorca.st/violation/.
User Generated Content
Colorcast users my post, upload, or otherwise contribute content to the Service (which may include, for example, pictures, text, messages, information, audio streams, descriptions, compilations, and/or other types of content) (“User Generated Content”; equally encompassed in the more general term, “Content”).
You promise that, with respect to any User Generated Content you contribute to Colorcast, (1) you own or have the right to post such Content, and (2) such User Generated Content, or its use by Colorcast as contemplated by this Agreement, does not violate the Agreement or any other rights set forth with any accompanying user guidelines, applicable law, or the intellectual property, publicity, personality, or other rights of others, or imply any affiliation with or endorsement of you or your User Generated Content by Colorcast or any entity or individual without the expressed written consent from Colorcast or such individual or entity.
Colorcast may, but has no obligation to, monitor, review, remove, or edit User Generated Content. In all cases, Colocast reserves the right to remove or disable access to any User Generated Content for any or no reason, including User Generated Content that, in Colorcast’s sole discretion, violates the Agreement. Colorcast may take these actions without prior notification to you or any third party. Removal or disabling of access to User Generated Content shall be at Colorcast’s sole discretion, and we do not promise to remove or disable access to any specific User Generated Content.
You are solely responsible for all User Generated Content that you post. Colorcast is not responsible for User Generated Content nor does it endorse any opinion contained in any User Generated Content.
YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST COLORCAST RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU WILL INDEMNIFY AND HOLD COLORCAST HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.
You can use parts of the Service, such as browsing and searching for Content, without having a Colorcast account. However, you do need a Colorcast account to use some features. With a Colorcast account, you may be able to like Casts, follow Casters, stream your own Cast, chat, and more.
To protect your Colorcast account, keep your password confidential. You should not reuse your Colorcast account password on third-party applications.
Permissions and Restrictions
You may access and use the Service as made available to you, as long as you comply with this Agreement and applicable law. You may view or listen to Content for your personal, non-commercial use. You may also listen to Colorcast Content through the embeddable Colorcast player.
The following restrictions apply to your use of the Service. You are not allowed to:
- access, reproduce, download, “rip,” record, transfer, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service, the underlying software, or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from Colorcast and, if applicable, the respective rights holders;
- circumvent, disable, fraudulently engage with, or otherwise interfere with any part of the Service (or attempt to do any of these things), including security-related features or features that (a) prevent or restrict the copying or other use of Content or (b) limit the use of the Service or Content;
- access the Service using any automated means (such as robots, botnets or scrapers) except (a) in the case of public search engines, in accordance with Colorcast’s robots.txt file; or (b) with Colorcast’s prior written permission;
- collect or harvest any information that might identify a person (for example, usernames), unless permitted by that person or allowed under section (3) above;
- use the Service to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations;
- use the Service to retransmit copyrighted audio;
- use the Service to circumvent protections employed by third-parties to protect copyrighted work, including but not limited to, using Colorcast to redistribute protected audio content;
- cause or encourage any inaccurate measurements of genuine user engagement with the Service, including by paying people or providing them with incentives to increase listens, likes, or dislikes, or to increase a Caster’s followers, or otherwise manipulate metrics in any manner;
- misuse any reporting, flagging, complaint, dispute, or appeals process, including by making groundless, vexatious, or frivolous submissions;
- run contests on or through the Service;
- use the Service to view or listen to Content other than for personal, non-commercial use (for example, you may not publicly stream audio from the Service); or
- use the Service to (a) sell any advertising, sponsorships, or promotions placed on, around, or within the Service or Content; or (b) sell advertising, sponsorships, or promotions on any page of any website or application that only contains Content from the Service or where Content from the Service is the primary basis for such sales (for example, selling ads on a webpage where Colorcast audio is the main draw for users visiting the webpage).
- post or Cast any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- use the service for any unlawful purpose or for the promotion of illegal activities;
- attempt to, or harass, abuse or harm another person or group;
- use another user’s account without permission;
- provide false or inaccurate information when registering an account;
- interfere or attempt to interfere with the proper functioning of the Service;
- make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure.
- make use of Colorcast in any way that Colorcast determines to be in conflict with this Agreement.
End User License Agreement
Using the Service does not give you ownership of or rights to any aspect of the Service, including user names or any other Content posted by others or Colorcast.
You are granted a limited, non-exclusive, revocable permission to make use of Colorcast, and a limited, non-exclusive, revocable permission to make personal, non-commercial use of the Content on Colorcast–including the content you create (collectively, “Access”). This access shall remain in effect until and unless terminated by you or by Colorcast. You promise and agree that you are using Colorcast and Content on Colorcast for your own personal, non-commercial use, and that you will not redistribute or transfer Colorcast’s Services or Content.
Colorcast software applications and Content are not sold or transferred to you, and Colorcast and its Affiliates, and Licensors, retain ownership of all copies of Colorcast’s software applications and Content even after installation on your personal computer, mobile device, tablet, speakers, and/or other devices.
All Colorcast trademarks, service marks, trade names, logos, domain names, and any other features of the Colorcast (“Colorcast Brand Features”) brand are the sole property of Colorcast or its Affiliates and Licensors. This Agreement does not grant you any rights to use any Colorcast Brand Features whether for commercial or non-commercial use.
License to Colorcast
To the extent any rights in the Content or Services are retained by you, you grant Colorcast a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and Colorcast’s (and its Affiliates’) business, including for the purpose of promoting and redistributing part or all of the Service. Where applicable and permitted under applicable law, you also agree to waive and not enforce any “moral rights” or equivalent rights, such as your right to be identified as the author of any User Generated Content, including the aforementioned feedback, and your right to object to derogatory treatment of such User Generated Content.
If you provide feedback, ideas, or suggestions to Colorcast in connection with Colorcast’s Services or Content, you acknowledge that such feedback is not confidential and you authorize Colorcast to use that Feedback without restriction and without payment to you. Feedback is properly considered a type of User Generated Content.
You agree that Colorcast may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Colorcast. Colorcast may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
License to Other Users
You also grant each other user of the Service a worldwide, non-exclusive, royalty-free license to access your Content through the Service, and to use that Content, including to reproduce, distribute, prepare derivative works, display, and perform it, only as enabled by a feature of the Service (such as audio playback or embeds). For clarity, this license does not grant any rights or permissions for a user to make use of your Content independent of the Service.
You may not use or otherwise export or re-export Colorcast or its Services or Content except as authorized by this Agreement and as authorized by United States law and the laws of the jurisdiction in which such license was obtained. In particular, but without limitation, the aforementioned may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using Colorcast, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use Colorcast for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
Duration of License
The licenses granted by you continue for a commercially reasonable period of time after you remove or delete your Content from the Service. You understand and agree, however, that Colorcast may retain, but not display, distribute, or perform, server copies of your Casts that have been removed or deleted.
Removal of Content and Copyright
Removing Your Content
You may remove your Content from the Service at any time. You must remove your Content if you no longer have the rights required by these terms.
Removal of Content By Colorcast
If we reasonably believe that any Content is in breach of this Agreement or may cause harm to Colorcast, our users, or third parties, we may remove or take down that Content in our discretion. We will notify you with the reason for our action unless we reasonably believe that to do so: (a) would breach the law or the direction of a legal enforcement authority or would otherwise risk legal liability for Colorcast or our Affiliates; (b) would compromise an investigation or the integrity or operation of the Service; or (c) would cause harm to any user, other third party, Colorcast or our Affiliates.
DMCA Takedown Policy
Colorcast respects the intellectual property rights of others and expects you to do the same. Per the Digital Millennium Copyright Act (“DMCA”), Colorcast will respond expeditiously to claims of copyright infringement on the Site if submitted to Colorcast’s Copyright Agent as described below.
Upon receipt of a notice alleging copyright infringement, Colorcast will take whatever action it deems appropriate within its sole discretion, including removal of the allegedly infringing materials.
If you believe that your intellectual property rights have been violated by Colorcast or by a third party who has uploaded and or streamed Content onto or through Colorcast, please provide the following information to Colorcast’s designated Copyright Agent listed below:
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on Colorcast, including the alleged violator’s handle(s), the title of the Cast(s) in question, and the audio timestamp when the alleged infringing Content was posted/streamed/communicated;
- An address, telephone number, and e-mail address where Colorcast can contact you and, if different, an e-mail address where the alleged infringing party, if not Colorcast, can contact you;
- A statement that you have a good-faith belief that the use is not authorized by the copyright owner or other intellectual property rights owner, by its agent, or by law;
- A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf;
- Your electronic or physical signature.
Colorcast may request additional information before removing any allegedly infringing material. In the event Colorcast removes the allegedly infringing materials, Colorcast will immediately notify the person responsible for posting such materials that Colorcast removed or disabled access to the materials. Colorcast may also provide the responsible person with your e-mail address so that the person may respond to your allegations.
Colorcast reserves the right to terminate, limit or suspend any user’s access to Colorcast in the event of repeated infringing activity. If you believe that a user of Colorcast is a repeat infringer, please follow the instructions to contact Colorcast’s Copyright Agent. Please include sufficient information to assist Colorcast in determining that the user repeatedly engaged in infringing activity.
Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider.
Colorcast registered a designated agent with the Copyright Office pursuant to 17 U.S.C. 512(c). Colorcast’s designated Copyright Agent is:
Evan A. Kirkham
1200 Elm Street, # 207
Austin, TX 78703
Changes to the Service
Colorcast is constantly changing and improving the Service. We may also need to alter or discontinue the Service, or any part of it, in order to make performance or security improvements, change functionality and features, make changes to comply with law, or prevent illegal activities on or abuse of our systems. These changes may affect all users, some users, or even an individual user. Whenever reasonably possible, we will provide notice when we discontinue or make material changes to our Service that will have an adverse impact on the use of our Service. However, you understand and agree that there will be times when we make such changes without notice, such as where we feel we need to take action to improve the security and operability of our Service, prevent abuse, or comply with legal requirements.
Your Content and Conduct
Personal information is not intentionally gathered from visitors under the age of 13. Live audio content created on Colorcast is public upon creation and available for other Colorcast listeners to consume. When listeners tune into a Cast on the platform, information regarding when the listener tuned into the Cast is made public, as are any comments or interactions made by the listener during the Cast.
Types of Data We Collect
We collect both “Non-Personal Information” and “Personal Information.” Non-Personal Information cannot be used for purposes of personal identification, such as usage data, demographic information, user selected preferences, and preferences generated by Colorcast based on collected user data. “Personal Information” means data allowing someone to identify or contact the user, including, for example, names, handles, addresses, telephone numbers, email addresses, social handles, as well as any other non-public information linked to the foregoing data or user account.
Information Provided to Us
Personal Information: including, but not limited to, name, email address, bio, handle, and account password. Information Stored on Account: including, but not limited to, previous Casts, likes, follows, comments, pictures, sound files, answers to surveys, tickets, communications with Colorcast support team. Device information: including but not limited to, information provided by user’s browser or software application, type of device, type of browser. Location information: including, but not limited to, where the user is listening or casting or the users IP address and when said IP addresses accessed or otherwise interacted with Colorcast.
Use of Personal Information
We may use your Personal Information in the following ways: including, but not limited to, facilitating the creation of and secure your Account on our network; identifying you as a user in our system; providing improved administration of our Services; providing the Services you request; improving the quality of experience when you interact with our Services; sending you a welcome email to verify ownership of the email address provided when your Account was created; sending you administrative email notifications, such as security or support and maintenance advisories; sending requested notifications through our Services, including our mobile application and web browser, pertaining to member activities, your interests, and your user experience; responding to your inquiries related to employment opportunities or other requests; performing Service functions requiring reference to data, sending newsletters, surveys, offers, and other promotional materials related to our Services and for other marketing purposes including those of third parties, and performing marketing or data analysis.
Use of Non-Personal Information
We use Non-Personal Information for the primary purposes of operating, improving, and customizing the Services, including the user’s experience. Colorcast may also use non-personal information to improve its marketing and website functionality. Colorcast reserves the right to disclose Non-Personal Information.
Links to Third Party Websites
As part of the Service, we may provide links to or compatibility with other websites or applications. We are not responsible for any third-party’s use of personal or non-personal information, however obtained.
Your Rights Regarding the Use of Your Personal Information
You have the right at any time to prevent us from contacting you for marketing purposes via the instructions included in such communications.
Security of Your Personal Information
Your account is protected by your account password. Keep your password safe. We cannot guarantee that your information will not be accessed, disclosed, altered, or otherwise destroyed by the breach or destruction of our (licensed or otherwise) firewalls, servers, facilities, software programs, physical assets, user accounts, whether physical, electronic, computational, or otherwise. We are not responsible for a third party’s purposeful or accidental disclosure of Personal Information if such third party is either unaffiliated with Colorcast or otherwise not under Colorcast’s control. We cannot guarantee absolute security. By using our Service, you acknowledge that you understand and agree to assume these risks.
Account Suspension & Termination
Terminations by You
You may stop using the Service at any time.
Terminations and Suspensions by Colorcast for Cause
Colorcast may suspend or terminate your access, your Colorcast account, or your Colorcast account’s access to all or part of the Service if (a) you breach this Agreement; (b) we are required to do so to comply with a legal requirement or a court order; or (c) we believe there has been conduct that creates (or could create) liability or harm to any user, other third party, Colorcast or our Affiliates, whether financially, reputationally, or otherwise.
Terminations by Colorcast for Service Changes
Colorcast may terminate your access, or your Colorcast account’s access to all or part of the Service if Colorcast believes, in its sole discretion, that provision of the Service to you is no longer commercially viable.
Notice for Termination or Suspension
We will attempt to notify you about such termination or suspension unless we reasonably believe that to do so: (a) would violate the law or the direction of a legal enforcement authority, or would otherwise risk legal liability for Colorcast or our Affiliates; (b) would compromise an investigation (civil or criminal) or the integrity or operation of the Service; or (c) would cause harm (financial or otherwise) to any user, other third party, Colorcast or our Affiliates.
Effect of Account Suspension or Termination
If your Colorcast account is terminated, you may be permitted to continue using features not requiring an account. In such instances, these Terms of Service will continue to control.
About Software in the Service
When the Service requires or includes downloadable software, you give permission for that software to update automatically on your device once a new version or feature is available, subject to your device settings.
Some software used in our Service may be offered under an open source license that we make available to you. There may be provisions in an open source license that expressly override some of these terms, so please be sure to read those licenses.
Other Legal Terms
OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT OR AS REQUIRED BY LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND AND COLORCAST DOES NOT MAKE ANY SPECIFIC COMMITMENTS OR WARRANTIES ABOUT THE SERVICE. FOR EXAMPLE, WE DON’T MAKE ANY WARRANTIES ABOUT: (A) THE CONTENT PROVIDED THROUGH THE SERVICE; (B) THE SPECIFIC FEATURES OF THE SERVICE, OR ITS ACCURACY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS; OR (C) THAT ANY CONTENT YOU SUBMIT WILL BE ACCESSIBLE ON THE SERVICE.
Limitation of Liability
EXCEPT AS REQUIRED BY APPLICABLE LAW, COLORCAST, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WILL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES, GOODWILL, OR ANTICIPATED SAVINGS; LOSS OR CORRUPTION OF DATA; INDIRECT OR CONSEQUENTIAL LOSS; PUNITIVE DAMAGES CAUSED BY:
- ERRORS, MISTAKES, OR INACCURACIES ON THE SERVICE;
- PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF THE SERVICE;
- ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE;
- ANY INTERRUPTION OR CESSATION OF THE SERVICE;
- ANY VIRUSES OR MALICIOUS CODE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY;
- ANY CONTENT WHETHER SUBMITTED BY A USER OR COLORCAST, INCLUDING YOUR USE OF CONTENT; AND/OR
- THE REMOVAL OR UNAVAILABILITY OF ANY CONTENT.
THIS PROVISION APPLIES TO ANY CLAIM, REGARDLESS OF WHETHER THE CLAIM ASSERTED IS BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS, COLORCAST, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS OR DEBT, AND EXPENSES (INCLUDING BY NOT LIMITED TO ATTORNEYS’ FEES) ARISING FROM (i) YOUR USE OF AN ACCESS TO THE SERVICE, (ii) YOUR VIOLATION OF ANY TERM OF THIS AGREEMENT; (iii) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT, OR (iv) ANY CLAIM THAT YOUR CONTENT CAUSED DAMAGE TO A THIRD PARTY. THIS DEFENSE AND INDEMNIFICATION OBLIGATION WILL SURVIVE THIS AGREEMENT AND YOUR USE OF THE SERVICE.
About this Agreement
Modifying this Agreement
We may modify this Agreement, for example, to reflect changes to our Service or for legal, regulatory, or security reasons. Colorcast will attempt to provide reasonable advance notice of any material modifications to this Agreement and the opportunity to review them, except that modifications addressing newly available features of the Service or modifications made for legal reasons may be effective immediately without notice. Modifications to this Agreement will only apply going forward. If you do not agree to the modified terms, you should remove any Content and discontinue your use of the Service.
Continuation of this Agreement
If your use of the Service ends, the terms of this Agreement (these “Terms of Service”) will continue to apply to you.
If it turns out that a particular term of this Agreement is not enforceable for any reason, this will not affect any other terms.
If you fail to comply with this Agreement and we do not take immediate action, this does not mean that we are giving up any rights that we may have (such as the right to take action in the future). Colorcast does not waive any term of or right arising out of his Agreement by non-enforcement.
In these terms, “include” or “including” means “including but not limited to,” and any examples we give are for illustrative purposes. The inclusion of “include”, “including”, or “including but not limited to” in any one provision has no bearing on the interpretation of omission from any other provision. The provisions in this Agreement should not be construed as against the drafter.
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE COLORCAST SERVICE IS TO UNINSTALL ANY COLORCAST SOFTWARE AND TO STOP USING THE COLORCAST SERVICE. YOU AGREE THAT COLORCAST HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD PARTY APPLICATION OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE COLORCAST SERVICE, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO COLORCAST, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
IN NO EVENT WILL COLORCAST, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATE, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), AND ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE COLORCAST’S SERVICE, DEVICES, USER GENERATED CONTENT, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER COLORCAST HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO COLORCAST’S SERVICE, USER GENERATED CONTENT, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT.
YOU AGREE THAT ANY CLAIM AGAINST COLORCAST MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION (24.2.1) OR FILING AN INDIVIDUAL ACTION UNDER SECTION (24.2.2) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLE SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Other than as stated in this section or as explicitly agreed upon in writing between you and Colorcast, this Agreement constitutes all the terms and conditions agreed upon between you and Colorcast and supersedes any prior agreements in relation to the subject matter of this agreement, whether written or oral.
Colorcast may assign this Agreement, and any of its rights under this Agreement in whole or in part, and Colorcast may delegate any of its obligations under this Agreement. You may not assign this Agreement, in whole or in part, nor transfer or sub-license your rights under this Agreement, to any third party.
You agree to indemnify and hold Colorcast harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of or related to; (1) your breach of this Agreement; (2) any User Generated content you post or otherwise contribute; (3) any activity in which you engage on or through Colorcast’s Service; (4) your violation of any law or the rights of a third party.
Choice of Law, Mandatory Arbitration, and Venue
This Agreement (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of Texas, United States of America, without regard to choice or conflicts of law principles. Further, you and Colorcast agree to the jurisdiction of the Northern District of Texas to resolve any dispute, claim, or controversy that relates to or arises in connection with this Agreement (and any non-contractual disputes/claims relating to or arising in connection with them) that is not subject to mandatory arbitration as detailed below.
This Arbitration Agreement applies only to users in the United States.
You and Colorcast agree that any dispute, claim, or controversy between you and Colorcast arising in connection with or relating in any way to this Agreement or to your relationship with Colorcast as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of this Agreement) will be determined by mandatory binding individual (not class) arbitration. You and Colorcast further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of this Agreement.
Notwithstanding the clause above, you and Colorcast both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
No Class Or Representative Proceedings: Class Action Waiver
YOU AND COLORCAST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.
Unless both you and Colorcast agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
Either you or we may start arbitration proceedings. Any arbitration between you and Colorcast will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and Colorcast agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above).
The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Colorcast can also help put you in touch with the AAA. Any arbitration hearings will take place in Austin County, Texas, provided that if the claim is for $25,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in Austin County, Texas.
Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Notice and Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Colorcast’s address for Notice is: Colorcast Inc., 1200 Elm Street #207, Austin, TX 78703. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Colorcast may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Colorcast shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, and the arbitrator issues you an award that is greater than the value of Colorcast’s last written settlement offer, then Colorcast will instead pay you either the amount of the award or $1,000, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in “Governing Law/Jurisdiction” subsection shall govern any claim in court arising out of or related to this Agreement.
Effective as of November 9, 2020