TERMS OF SERVICE
Will go into effect August 16, 2022.
These Terms of Service, including all exhibits, schedules, order forms, and policies referenced herein (collectively, this “Agreement”) is between you and Switcher, Inc. (“Switcher”) and governs your access to and use of the Switcher website currently located at www.switcherstudio.com, including all subdomains thereof including without limitation https://dashboard.switcherstudio.com/ (collectively, the “Website”) and any software products, including without limitation the Cartr application for Shopify, the Switcher platform and related desktop and mobile software applications (collectively, the “Applications”) and related services (“Services”) to which you subscribe or otherwise receive from Switcher.
By clicking/checking the “I agree” button/box referencing the Website, Application, or Services (collectively, the “Switcher Properties”), accessing the Website, or by otherwise accessing or using the Applications or Services, you agree to be by bound by this Agreement and affirm that you are of legal age to enter into this Agreement.
If you are an individual accessing or using the Switcher Properties on behalf or for the benefit of an entity (an “Organization”), then you are agreeing to this Agreement on behalf of the Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. In such case, references to “you” and “your” in this Agreement will refer to such Organization.1. Provision of Applications and Services; Account.
1.1 Order Forms. If you order the Applications or Services through an online registration page or an order form made available by Switcher (collectively, an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Applications or Services. Unless otherwise expressly set forth in any such additional terms and conditions, such additional terms are hereby incorporated into this Agreement upon your acceptance of such Order Form and you agree to abide by such additional terms and conditions.
1.2 Applications and Services. Subject to the terms of this Agreement (including the terms of any applicable Order Form), Switcher grants to you a non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the Applications and Services for which you have obtained a subscription, for the term of such subscription, and only for your internal business purposes. If your subscription includes more than one seat, you may allow Authorized Users to access and use the Applications and Services on your behalf in accordance with such seat limitation. You are responsible for Authorized Users’ access to and use of the Switcher Properties. Switcher may modify the Switcher Properties from time to time in its sole discretion. “Authorized User” means your employee or agent whom you authorize to use the Applications or Services on your behalf in accordance with this Agreement.
1.4 Restrictions. Except as expressly permitted by this Agreement, you will not, and will not permit any Authorized User or third party to,: (i) rent, lend, lease, sell, resell, license, sublicense, use in a service bureau business, or otherwise commercially exploit the Switcher Properties; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of or any trade secrets embedded or used in the Switcher Properties; (iii) modify, translate, or create any derivative work of the Switcher Properties; (iv) remove, alter, or obscure any proprietary notice affixed to or contained in the Switcher Properties; (v) circumvent or attempt to circumvent any technological protective measure contained in the Switcher Properties; (vi) use the Switcher Properties to create, stream, or distribute any content (including User Content (defined below)) that is unlawful, defamatory, libelous, slanderous, obscene, violent, inappropriate, violates another’s right to privacy or publicity, or infringes any third party’s intellectual property rights; (vii) use the Switcher Properties in a way that abuses, interferes with, or disrupts Switcher’s networks or the Switcher Properties; (viii) engage in activity that is illegal, fraudulent, false, or misleading in connection with the Switcher Properties; (ix) build or benchmark a competitive product or service or copy any features, functions or graphics or trademarks of the Switcher Properties; or (x) use the Switcher Properties in violation of any Switcher policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings. In addition, Switcher may disable or restrict your access or use of any Switcher Properties or disable access to any User Content, if Switcher determines, in its discretion, that such use is excessive or interfere or disrupts with Switcher’s networks or the Switcher Properties or such User Content violates this Agreement.
1.5 Account Linking. The Applications and Services may enable you to stream or upload content created using the Applications and Services to a third-party platform. You are responsible for ensuring that any such interaction by Switcher or the Switcher Properties with the third-party platform is permitted under any terms governing use of such third-party platform.
1.6 Suspension. Without limitation of any other rights Switcher has under this Agreement, Switcher reserves the right to disable access to or impose limits on use of the Applications and Services at any time without liability to you. Switcher reserves the right to refuse to provide the Applications and Services to anyone for any reason at any time.
1.7 Trial Use. Switcher may provide you access to the Applications and Services on a temporary, trial basis. During such trial period, you will be subject to the terms of this Agreement in the same manner as a non-trial user. For certain Applications and Services you will be automatically enrolled in a paid subscription after your trial period ends unless you cancel the enrollment. You agree to pay any amounts due as a result of such enrollment. Switcher will provide notice if the applicable Application or Service trial period is subject to such automatic enrollment.2. Content.
2.2 User Content. You are solely responsible for the content created, uploaded, distributed, or displayed (including live streamed) by you or on your behalf in connection with your use of the Switcher Properties, including without limitation, any recordings you create in connection with your use of the Switcher Properties (collectively, “User Content”). User Content includes content you stream or otherwise display using the functionality of the Switcher Properties on your website, the Website, or other a third party property. As between you and Switcher, you are solely responsible for all User Content and all liability resulting therefrom. You are also responsible for complying with all applicable laws, rules, and regulations pertaining to User Content, including with respect to obtaining consent of a third party to upload, distribute, or display (including live stream) User Content and providing appropriate notices of third-party rights. You represent and warrant that you have the right to upload User Content to the Switcher Properties or display User Content on your properties, and that any uploading, distribution, or display thereof does not infringe on or violate any rights of any third party, including any intellectual property rights. Switcher shall not be liable for any errors or omissions in User Content or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to User Content. In addition, you agree that you will not create, upload, distribute, or display (including lived stream) any User Content that is unlawful, defamatory, libelous, slanderous, obscene, violates another’s right to privacy or publicity, or infringes on any patent, trademark, copyright, or other property right.
2.3 Switcher Content. Switcher may make available to you certain images, video, audio, sound effects, graphic templates and other assets in connection with the Applications and Services (“Switcher Content”). You may only use the Switcher Content in connection with your use of the Applications and Services, and not for any other purpose.
2.4 Third-Party Properties. The Switcher Properties may link to, interface with, or otherwise enable you to access or use content, data, information, or materials (“Third-Party Content”) through third-party interfaces, platforms, databases, resources, or websites, including social media platforms (“Third-Party Properties”). If you choose to interact with a service made available by a Third-Party Property provider (e.g., Facebook, YouTube, Twitch, Shopify), you will be subject to the Third-Party Property provider’s terms of service with respect to such interactions. If there is a conflict between this Agreement and the Third-Party Property provider’s terms of service, the Third-Party Property provider’s terms of service will prevail with respect to the Third-Party Property. Switcher does not control the content, data, information, or materials available through such third-party interfaces, platforms, databases, resources, or websites, and Switcher shall not be responsible for any lack of accuracy, availability, completeness, reliability, security, substance, or timeliness of any such third-party content, data, information, or materials.
3.1 Technical Requirements. You are responsible for obtaining, configuring, and maintaining at your expense all third-party software, hardware, network access, telecommunications, and other services and equipment necessary for you to access and use the Applications and Services (“Infrastructure”) and for ensuring that all Infrastructure meets the minimum requirements applicable to such Infrastructure as may be published by Switcher from time to time. You are responsible for any data charges incurred from your internet service provider or wireless carrier while using the Applications and Services. You are responsible for monitoring Switcher’s status page at https://switcher.statuspage.io/ (or a successor site designated by Switcher from time to time) or other information Switcher makes available regarding the availability of the Services. Some features and services of the Applications and Services are delivered using third-parties and Switcher is not responsible or liable for such features or services, or interruptions thereof. Switcher is also not responsible or liable for interruptions in service as a result of your internet service provider, wireless carrier or third-party services required to operate Switcher (i.e., Microsoft Azure, Twilio, Cloudflare, etc.).
3.2 Recordings; Live Stream Sessions. You are responsible for compliance with all recording laws in connection with your use of the Switcher Properties. By using the Applications and Services, you are giving Switcher consent (on your behalf and on behalf of all participants in all recordings) to store recordings of any sessions for which cloud storage functionality has been enabled and to distribute and display the recordings and any live stream sessions as directed by you. If you do not consent to having a recording stored by Switcher, you may disable this feature when creating an event. If you do not consent to having a recording or live stream session distributed or displayed, you should not enable the functionality within the Applications and Services permitting this activity. This recording can be downloaded or deleted from your online account. Switcher will retain cloud recordings in accordance with your subscription. For example, if your subscription specifies the retention of ten (10) recordings, only your ten (10) most recent recordings will be retained, and the remaining recordings will be overwritten. You may also have the option to “pin” recordings, in which case such recordings will not be overwritten without your authorization.
4. Support. Self-service technical support is available via the Help Center page of the Website: http://support.switcherstudio.com. Email support is only available to account holders in good standing and is provided via the online dashboard or by emailing firstname.lastname@example.org Payments Terms.
5.1 Payment. You agree that Switcher may charge to your credit card or other payment mechanism selected by you and approved by Switcher (“Your Account”) all amounts due and owing for the Applications and Services, including taxes and service fees, setup fees, subscription fees, or any other fee or charge associated with Your Account. Switcher may change prices at any time, including charging for Applications or Services that were previously offered free of charge; provided, however, that such price change will not go into effect until the renewal of your subscription. Notice of price change may be provided at any time by posting the updated pricing to the Website pricing page at http://switcherstudio.com/pricing. If Switcher is unable to collect the fees owed to Switcher for the Applications and Services through Your Account, Switcher may take any other steps it deems necessary to collect such fees from you, and you will be responsible for all costs and expenses incurred by Switcher in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Switcher may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
5.2 Sales Fee. If you use the Cartr application, Switcher will receive a Sales Fee for products purchased from your videos made using the application. The Sales Fee percentage is determined by your subscription tier. This fee will be billed every 30 days through Shopify. The Sales Fee is capped at $1,000 per month. Merchants must increase the max cap via Shopify. Here are instructions on how to increase the max cap.
5.3 Refunds and Credits. All amounts paid for the Applications and Services are non-refundable. However, Switcher, in its sole discretion, may provide you with a refund or credit based on your specific situation. To request a refund or credit, please contact email@example.com.
5.4 Cancellation. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional subscriptions, and your access to the Applications and Services will continue until the end of the then-current subscription term. If you choose to upgrade or downgrade the subscription plan you have purchased, a prorated credit will be applied for the current plan’s unused term. A charge for the full amount of the new plan will be applied, offset by any credits.
5.5 Subscription Management. You may elect to purchase an annual subscription or a monthly subscription for the Application and Services. Certain Application or Services may be eligible only for monthly subscriptions. For an annual subscription, you will pre-pay the annual subscription fees specified in the Order Form for the period between the beginning of the subscription term set forth in the Order Form and the twelve (12) month anniversary thereof, and each subsequent twelve (12) month period thereafter during the subscription term. For a monthly subscription, you will pay the monthly subscription fees specified in the Order Form in advance on a month-to-month basis.
5.6 Taxes. Unless stated otherwise in the Order Form, all prices and fees are exclusive of taxes and regulatory fees, service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Where applicable, taxes and regulatory fees will be charged on the invoices issued by Switcher in accordance with local laws and regulations. The taxes and regulatory fees charged can be changed without notice. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to domestic or cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement.6. Proprietary Rights.
6.1 Ownership. As between the parties, Switcher or its vendors own all right, title, and interest including all intellectual property rights in and to the Switcher Properties, and all modifications, enhancements, and new versions thereof. Switcher reserves all other rights, title, and interest not expressly granted in this Agreement, and you shall not take any action to challenge or impair the rights of Switcher or its vendors in or to the Switcher Properties. “Switcher Studio”, “Cartr” and all other names, logos, and icons identifying Switcher’s products and services are proprietary marks of Switcher or its vendors, and any use of such marks by you shall inure to the benefit of Switcher or its vendors. Except as expressly provided in this Agreement, any use of such marks without Switcher’s prior written consent is strictly prohibited.
11.1 Limitation of Liability. IN NO EVENT SHALL SWITCHER BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, WHETHER AN ACTION BASED UPON CONTRACT, TORT OR OTHERWISE.
11.2 Maximum Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SWITCHER FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE FEES PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT WITH RESPECT TO THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE FIRST CLAIM GIVING RISE TO SUCH LIABILITY AROSE (OR, IF SUCH FIRST CLAIM AROSE DURING THE INITIAL TWELVE (12) MONTHS OF THE TERM, THE FEES THAT WOULD BE PAID OR PAYABLE BY YOU FOR THE FULL INITIAL TWELVE (12) MONTHS OF THE TERM).12. General.
12.1 Changes to this Agreement. Switcher may change this Agreement on a going-forward basis at any time and in its sole discretion. If Switcher makes changes to this Agreement, it will notify you of the changes. This notice to you may include sending a message to the email address or text message number you provided to us or notice through the Switcher Properties. Switcher will also update the “Last Updated” date at the top of this Agreement when it makes changes. Your continued use of the Switcher Properties will confirm your acceptance of the revised Agreement. If you do not agree to the revised Agreement, you must stop using the Switcher Services and delete your account.
12.2 Assignment. Except as explicitly set forth in this Agreement, you shall not assign or otherwise transfer this Agreement or any of its rights hereunder or delegate or subcontract any of your duties hereunder, without Switcher’s prior written consent. Any purported assignment, transfer, delegation, or subcontracting in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns.
12.3 Force Majeure. Neither party shall be liable for any failure to perform any of its obligations under this Agreement (except for payment obligations) due to unforeseen circumstances or causes beyond the party’s reasonable control, including acts of God, riot, embargoes, acts of governmental authorities, fire, earthquake, flood, acts of terror, lack of availability or operability of third-party software or services, and computer attacks or malicious acts (such as attacks on or through the internet, any internet service provider, telecommunications, or hosting facility).
12.4 No Third-Party Beneficiaries. This Agreement is not intended to confer any benefit on any person or entity not a party to this Agreement.
12.5 Relationship. The relationship between the parties is and shall be that of service provider and customer only, and nothing in this Agreement shall be construed or used to create or imply any relationship between the parties of partners, joint venturers, or employer and employee.
12.6 Waiver, Amendment, or Modification. No failure or delay by either party in exercising any right, power, or remedy with respect to any of the provisions of this Agreement shall operate as a waiver thereof. This Agreement may be amended, and any provision of this Agreement may be waived, only by a written instrument executed by both parties. The terms of this Agreement shall not be amended or changed by the terms of any purchase order, acknowledgment, invoice, or similar document, even though a party may have signed or accepted such document.
12.7 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that, unless it materially affects the entire intent and purpose of this Agreement, the invalidity, voidness, or unenforceability of such provision shall affect neither the validity of this Agreement nor the remaining provisions of this Agreement, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.
12.8 Governing Law. This Agreement has been made and shall be construed and enforced solely in accordance with the laws of Delaware without regard to conflict of laws principles. The parties hereby submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the federal and state courts in Wilmington, Delaware, for any disputes between the parties under or arising out of this Agreement.
12.9 Information or Complaints. If you have a question or complaint regarding the Switcher Properties or any content made available through the Switcher Properties, please send an email to firstname.lastname@example.org. Please note that email communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your email correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
12.10 Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available through the Services infringe your copyright, you (or your agent) may send to Switcher a written notice by mail or email, requesting that Switcher remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Switcher a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to us as follows:
By mail to:
Switcher Support Team
3058 Bardstown Rd. , #1060
Louisville, KY 40205
By email to:
12.11 Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant, and covenant that you are not: (a) located in or a resident or a national of any country subject to a U.S. government embargo or other restriction or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
12.12 Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the Applications compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the Applications. Apple is not providing any warranty for the Applications except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the Applications and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the Applications, including any third-party product liability claims, claims that the Applications fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the Applications, including those pertaining to intellectual property rights, must be direxfcted to Switcher in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the Applications on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the Applications, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Switcher’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
12.13 Right to Use User Content. Switcher may ask you to use certain User Content to use for its marketing, promotions, training, and other purposes. To the extent you permit such use, you grant Switcher a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform, and display such User Content and your (and other individuals’ that appear in the User Content) name, voice, and/or likeness as contained in such User Content, for such purposes.
12.14 Entire Agreement. This Agreement and any attachments, exhibits, or schedules hereto and thereto represents the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous statements, representations, or agreements, whether oral or written, with respect to the subject matter of this Agreement.