Evasyst, Inc.Last updated: August 14, 2020
These Terms of Service (the “Terms”) govern the relationship between Evasyst, Inc. d/b/a Kast (hereinafter, the “Company” “us,” or “we”) and you regarding your use of the www.kastapp.co and https://kast.gg websites (collectively the “Website”), Evasyst’s desktop, web, and mobile applications (each, an “App” and collectively, the “Apps”) and any other of the Company’s products or services used to facilitate your use of such services (collectively the “Service”).
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICE. BY DOWNLOADING ANY OF THE APPS, CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE. IF YOU WERE USING A BETA VERSION OR OTHER VERSION OF THE SERVICE OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT BETA OR OTHER VERSIONS OF THE SERVICE.
- Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by Other Users. We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using the Service to communicate with Other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under these Terms. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission:
- is accurate and is not confidential;
- is not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content;
- will not, when the Company exercises rights in Posted Content granted under Terms, result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and
- is free of viruses, adware, spyware, worms or other malicious code.
You further represent and warrant that you have all rights necessary to transmit Posted Content to the Company and to grant the rights in Posted Content granted to the Company under these Terms.
- Licenses to Posted Content: You hereby grant the Company a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. The Company will only exercise the rights granted in this Section 2.2 to offer or to facilitate the offering of the Service. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. The Company retains the right to display or distribute any Posted Content as necessary for the Company to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.
- Content Screening.
- Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Service. You acknowledge and agree that you have no expectation of privacy vis a vis us or any of our service providers who provide services to us or you as part of the Service concerning the transmission of any information, including without limitation chat, text or voice communications.
- Options Regarding Posted Content. The Company may reject, refuse to post or delete any or all Posted Content for any or no reason, including, but not limited to the reason that, in the sole judgment of the Company, the contents or posting or other use of such Posted Content in connection with the Service violates these Terms.
- User Interactions and Legal Problems; Releases. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute that arises between you and one or more Other Users. If you are a California resident, you acknowledge that you are aware of, and hereby waive your rights under the provisions of California Civil Code Section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Fees and Purchase Terms.
- Premium Features. The premium features of the Services are accessible only on a paid subscription basis (“Subscription Services”). When you sign up for one of the Subscription Services, you are committing to the subscription term you have chosen, which may be on a monthly or annual basis.
- Automatic Renewal. Your Subscription Services term will automatically renew at the end of your chosen term, and we will automatically bill the credit card we have on file for you, unless you have elected not to renew before the next billing cycle. You can always find your billing information in the “My Account” page. Annual subscribers will be sent a reminder email two weeks before the next billing cycle.
- User Cancellation. You may elect not to renew your Subscription Services at any time from your My Account page by clicking on “Cancel Subscription.” Your Subscription Services renewal cannot be cancelled via an email request. When you cancel, you will still be able to access the Subscription Services through the end of the billing cycle. There will be no refunds for late cancellation.
- Acceptance/Fee Changes. You agree to pay any and all fees and applicable taxes incurred by you or anyone using an Account registered to you. Any required fees will be specified as part of the Service or when you register your Account. The Company reserves the right to charge fees for any parts of the Service that may have previously been offered without a fee. The Company may revise the pricing for the goods and services offered through the Service at any time.
- NO REFUNDS. YOU ACKNOWLEDGE THAT THE COMPANY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PRODUCTS AND SERVICES WHEN YOUR ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
- Valid Payment Method. A valid payment method, including credit card, is required to process the payment for your Subscription Services or other purchases. To access the Subscription Services, and to pay for other purchases, you must therefore provide the Company’s third party payment processor with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, you authorize the Company to charge all purchases and Subscription Services’ fees incurred through your account to your credit card.
- Termination for Card Failure. If your current card on file fails for any reason we will automatically try to charge the card again after a 24-hour period. If the card fails a second time we will notify you via email, at which point you have 48 hours (“the grace period”) to update your account info using a valid credit card. If the “grace period” expires without a valid credit card on file, your access to the Subscription Services will automatically be cancelled.
- User Cancellation or Changes to Subscription Services. Please contact the Company’s customer support at firstname.lastname@example.org or visit your Account Settings page to cancel your automatic renewal or change your payment method. When cancelling automatic renewal of services, your Subscription Services will remain active until the end of the current pay cycle date, at which time the Subscription Services will expire.
- Copyright Notices; Complaints. It is the Company’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to the Company’s “Copyright Page” (below) to review our DMCA procedures. The Company reserves the right to terminate without notice any User’s access to the Service if that User is determined by the Company to be a “repeat infringer.” In addition, the Company accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
- Updates to the Service. You understand that the Service undergoes frequent changes. The Company may require that you accept or only use updates to the Apps or Service in order to continue using the Service. You acknowledge and agree that the Company may update the Service without notifying you.
- General. If a dispute arises between you and the Company, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and the Company agree that we will resolve any claim or controversy at law or equity that arises out of these Terms or the Service (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by e-mailing email@example.com. Other than those matters listed in Section 8.2, you and the Company agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 8, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
- Exclusions from Arbitration. YOU AND THE COMPANY AGREE THAT ANY CLAIM FILED BY YOU OR BY THE COMPANY IN SMALL CLAIMS COURT OR BY THE COMPANY RELATED TO PROTECTION OF THE COMPANY’S OR ANY COMPANY LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 8.
- RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY THE COMPANY IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO EVASYST, INC. 340 S LEMON AVE #9980 WALNUT, CA 91789 AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (3) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH THE COMPANY THROUGH ARBITRATION.
- Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE COMPANY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
- Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or the Company elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 8 will govern in the event they conflict with the arbitration rules identified below.
- Arbitration Procedures. Because the software and/or service provided to you by the Company concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, the Company as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the Company or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
- Location of Arbitration. You or the Company may initiate arbitration in either Orange County, California or the county in which you reside. If you initiate arbitration in the county of your residence, the Company may transfer the arbitration to Orange County, California provided that the Company agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
- Severability. If any clause within this Section 8 (other than the Class Action Waiver clause of Section 8.4) is found to be illegal or unenforceable, that clause will be severed from this Section 8 and the remainder of this Section 8 will be given full force and effect. If the Class Action Waiver (Section 8.4) clause is found to be illegal or unenforceable, this entire Section 8, except for this Section 8.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND THE COMPANY EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
- Survival. This Section 8 shall survive any termination of the Terms.
- Assignment. The Company may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of the Company; any purported assignment or delegation in violation of this Section 9.3 is void.
- Supplemental Policies. The Company may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.
340 S Lemon Ave #9980 Walnut, CA 91789
Attn: Terms Administrator
- Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone, so that the Company shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2.
- Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of the Company including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond the Company’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.
EVASYST/KAST COPYRIGHT POLICY AND DMCA GUIDELINES
Evasyst, Inc. d/b/a Kast (“Company” “us,” or “we”) takes claims of copyright infringement seriously. It is our policy to respond to clear notices of alleged copyright infringement that comply with applicable law and the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”). It is also our policy to disable and/or terminate the accounts of any users who found by us to be repeat infringers. We accommodate and do not interfere with standard technical measures used by copyright owners to protect their materials.
Reporting Claims of Copyright Infringement
If you are a copyright owner, or the agent of a copyright owner, and you believe any materials or content hosted on the evasyst.com or kast.gg websites (the “Websites”) or that are accessible on the Kast or Evasyst desktop and mobile applications (each, an “App” and collectively, the “Apps”) infringes your copyright, you may request removal of those materials (or access to them) by submitting written notification pursuant to the DMCA to our designated copyright agent with the following information in writing:
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Websites or Apps, a representative list of such works.
- Identification of the material you claim is infringing or to be the subject of infringing activity and that you are requesting be removed or disabled, and information reasonably sufficient for us to locate the material. (A best way to help us identify the infringing activity is to submit a link to, or description of, the broadcaster’s feed and a timestamp to the portion of the feed that you believe to be infringing.)
A statement containing the following:
- You have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
- The information in the notification is accurate, and;
- You swear, under penalty of perjury, that you are authorized to act on behalf of the copyright owner whose material is allegedly infringed.
(An example of such statement would be: “The information in this notification is accurate, and under penalty of perjury, I am the owner, or an agent authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.”)
- Adequate information by which we can contact you, including an address, telephone number, and, if available, an email address at which you may be contacted.
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (typing your full legal name is sufficient). Our designated copyright agent to receive your DMCA Notice is:
Evasyst, Inc. d/b/a Kast
340 S LEMON AVE #9980 WALNUT, CA 91789
If you fail to comply with all of the requirements of the DMCA for notifications, we may not act on your notice or communication.
Please be aware that if you knowingly materially misrepresent that material or activity on the Websites or Apps is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA. We may, at our discretion, share a copy of your notification or counter-notification with third parties (this may include sharing your contact information with the account holder engaged in the allegedly infringing activity or for publication).
Counter Notification Procedures
If you believe that material you posted on the Websites or Apps was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Adequate information by which we can contact you, including an address, telephone number, and, if available, an email address at which you may be contacted.
- Your physical or electronic signature (typing your full legal name is sufficient).
If you fail to comply with all of the requirements for DMCA counter-notifications, we may not act on your notice or communication. The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.
Please be aware that if you knowingly misrepresent that material or activity on the Websites or Apps was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
We will promptly terminate any user’s access to the Websites and Apps if that user is determined by us to be a repeat infringer of copyrighted works. Notwithstanding the preceding sentence, we reserve the right to immediately terminate the account of any user for any infringing activities in our sole determination and discretion.
If desired, the party originally submitting a claimed copyright infringement notice may retract such notice. We will honor such retractions where feasible, however, we may not be able to reinstate certain material. If you have received a DMCA notice, you may contact the claimant directly to request a retraction. To retract your claimed copyright infringement notice, please email firstname.lastname@example.org from the same email address as your original notification. Note that we cannot process retractions that are sent from a different email address. Your retraction must include the following:
- Clearly identify the material you wish to retract.
- The date of your original notification and the Claim ID, if applicable.
- An electronic or physical signature (typing your full legal name is sufficient).