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”).

For information relating to privacy and processing of your personal data please review the Company’s Privacy Policy, the current version of which can be found at the “Privacy Policy”.

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.

1. • Right, License and Restrictions.
   • 1. License Grant For Service. Subject to your agreement to, and continuing compliance with, these Terms and any other relevant Company policies, including the Community Guidelines and Copyright Policy, the Company grants you a non-exclusive, non- transferable, revocable limited right and license to access and use the Service. As used in these Terms, a “User” means someone who has been granted the right to use the Service, “Other User” means another licensee or user of the Service; “All Users” means you and all Other Users.
     2. App Specific Terms. You may agree to be bound by other terms regarding use or installation of an App and such terms continue to apply regardless of you agreeing to be bound by the Terms except to the extent such other terms conflict with any of the Terms, these Terms shall apply. You agree not to distribute or modify any App. You agree to always only use the latest available version of the App and acknowledge that any use of an older version of the App may result in some or all parts of the Service to not be available or to not function properly. You agree not to reverse engineer, decompile or otherwise attempt to view the source code for any App.
     3. Minimum Age Requirement. An individual must be at least 13 years of age to use the Service. However, for certain EU countries the minimum age to use the Service is set higher as follows:
        Minimum age of 14 – Italy, Spain, Austria, Bulgaria, Cyprus, LithuaniaMinimum age of 15 – France, Czech Republic and GreeceMinimum age of 16 – Germany, Ireland, Croatia, Hungary, Netherlands, Luxembourg, Poland, Romania, Slovakia and Slovenia.
     4. Accounts and Access. You must register for an account through the Service (an “Account”). You may register for multiple Accounts. An “Account Holder” means the person in whose username an Account is registered. You are wholly responsible for the cost of all internet connection fees, along with all equipment, servicing, or repair costs necessary to use the Service.
     5. • Use of the Service:
        • 1. Personal Responsibility. You are responsible for your use of the Service and for any Content you provide, including compliance with applicable laws, rules, and regulations. You should only provide information and Content that you are comfortable sharing with others. We are not responsible for information that you choose to share on the Service, or for the actions of other users.
          2. No Endorsement. You acknowledge that any user content (including without limitation chats, postings, videos or materials posted by users) on the Service is neither endorsed nor controlled by us. We will not under any circumstances be liable for any activity or conduct of users within the Service. Any use or reliance on any Content, advertisements or materials posted via the Service or obtained by you through the Service is at your own risk. The Company does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content, advertisement or communications posted via the Service or endorse any opinions expressed via the Service.
          3. No Responsibility and User Consent. You understand that by using the Service, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. All Content is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Service and, we cannot take responsibility for such Content. We reserve the right to remove Content that violates these Terms or our Community Guidelines.
          4. • The following restrictions apply to the use of the Service:
             • 1. You accept full responsibility for any unauthorized use of the Service by parties not authorized to use any of your Accounts;
               2. You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
               3. Without first obtaining the written permission of the Company, you shall not register for an Account or in any way use the Service if the Company has removed, suspended, or otherwise terminated any Account registered for by you, or on behalf of you or if the Company has notified you that you may not use the Service;
               4. You shall not use your Account to advertise, solicit or transmit any commercial advertisements, including chain letters, junk email or repetitive messages to anyone;
               5. You shall not use the Service to engage in any illegal conduct;
               6. You shall not post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person; and
               7. You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
                  
     6. • Account Information and Management.
        • 1. Information Provided When Setting Up Account. When creating or updating an Account on the Service, you may be required to provide Company with certain personal information for yourself, which may include (but is not limited to) personal information such as e-mail address and the vanity username and password for your Account (“Account Information”). Account Information will be held and used in accordance with the Privacy Policy. You agree that you will supply accurate and complete Account Information to the Company, and that you will update such information when and as it changes.
          2. • Login Information. During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:
             • 1. You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
                  
               2. In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify the Company and change the password on your Account;
               3. You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, whether or not authorized by you;
                  
               4. You are responsible for ensuring that all persons who access the Service through your Account are aware of these Terms and will comply with them; and
               5. You are responsible for anything that happens through your Account.
          3. Account Access. You may access your Account and use the Service through the Apps on different devices and you may be logged into your Account on multiple devices at a time, however, certain functionality of the Service may not be available simultaneously on multiple devices.
          4. Reclaiming Usernames. The Company reserves the right to remove or reclaim any username at any time and for any reason or no reason, including but not limited to claims by a third party that a username violates the third party’s rights.
             
     7. • License and Account Limitations and Prohibitions.
          
        • 1. General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1, and may subject you to liability for violations of law. The Company is permitted to restrict use of the Service for anyone who the Company reasonably believes has or will violate these Terms or any applicable law when using the Service.
          2. • Activity Prohibitions. You agree that you will not, under any circumstances:
             • 1. Engage in any act that the Company deems objectionable or to be in conflict with the spirit or intent of the Service or our Community Guidelines;
                  
               2. Post, upload, transmit or otherwise share any information that is objectionable as outlined in our Community Guidelines;
               3. Post any information that contains nudity of minors (even in illustrated or digitally-altered form), gore, terrorism, excessive violence, catastrophic injury, cruelty to animals, or other offensive subject matter or that contains a link to such content;
                  
               4. Defame, libel, ridicule, mock, stalk, threaten, harass, abuse, harm, or advocate or incite harassment, abuse or harm anyone, including Kast’s employees;
                  
               5. Use the Service in any fraudulent manner or in connection with any violation of applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
               6. Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of the Company;
                  
               7. Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;
               8. Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
               9. Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);
                  
               10. Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
                   
               11. Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items.
               12. Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
               13. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
               14. Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
               15. Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;
                   
               16. Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by the Company;
               17. Copy, modify or distribute rights or content from the Website or any App, including but not limited to content that contains or is protected by the Company’s copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;
                   
               18. Solicit or attempt to solicit personal information from Other Users, other than from Users with whom you have an existing relationship and only in connection with a bona fide purpose for which the Service is intended;
               19. Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or
               20. Upload or transmit (or attempt to upload or to transmit), without the Company’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
          3. No Limitation. These prohibitions on use are not meant to be exhaustive, and we reserve the right to determine what conduct we consider to be a violation of the Terms, Community Guidelines or improper use of the Service and to take action including termination of your Account and exclusion from further participation in the Service.
     8. • Suspension and Termination of Account and Service:
          
        • 1. FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICE. THE COMPANY SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.
          2. • IP INFRINGEMENT.
             • 1. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR WEBSITE, APPS AND THEIR CONTENT, SERVICE AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT YOU FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
                  
               2. REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
          3. Right to Cease Service. The Company reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. The Company shall not be required to provide refunds, benefits or other compensation to Users in connection with such cessation of the Service or any part thereof.
          4. Termination of Account. Termination of your Account can include disabling your access to the Service or any part thereof, including disabling access to any content that you or Other Users submitted. You agree that if your Account is terminated, the Company will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service relating to your Account, whether by you or an Other User. We reserve the right to suspend or delete Accounts, parties, groups and Posted Content (defined below) in our discretion and for any reason, including for inactivity.
          5. Cancellation of Account. You may cancel your Account at any time by emailing support@kastapp.co, discontinuing use of the Service and deleting or uninstalling any Apps from devices in your possession or control.
     9. Intellectual Property Ownership in the Service. The Service, and all of its components and contents, (including without limitation any computer code, template content, pre- populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by the Company or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws. All rights granted to you to use the Service are by license only and no ownership rights in any of the Service are transferred or assigned under these Terms.
2. • Posted Content.
   • 1. • 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:
        • 1. is accurate and is not confidential;
          2. 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;
          3. 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
          4. • 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.
     2. 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.
     3. • Content Screening.
          
        • 1. 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.
          2. • 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.
     4. 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.”
3. • Fees and Purchase Terms.
   • 1. 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.
     2. 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.
     3. 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.
     4. 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.
     5. 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.
        
4. • Payment.
   • 1. 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.
     2. 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.
     3. Payment Processor Terms. By using the Services and agreeing to these Terms, you also agree to be bound by our third-party payment processor’s terms of use and privacy policy. You understand and agree to not hold the Company liable for any adverse effects that actions (whether intentional or unintentional) on the part of our third-party payment processing service may cause. THE COMPANY cannot accept, and hereby exclude to the fullest extent permitted by applicable law, any liability arising out of or in connection with your use of our third-party payment processing service.
     4. User Cancellation or Changes to Subscription Services. Please contact the Company’s customer support at subscription@kast.gg 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.
5. • Third Party Services and Advertising.
   • 1. Third Party Advertisements. You understand that the Service may feature advertisements from the Company or third parties. The Privacy Policy addresses our disclosure of information for third party advertising.
     2. Links to Third Party Sites and Dealings with Advertisers. The Company may provide links on the Service to third party websites or vendors. Any charges or obligations you incur in your dealings with these third parties are your responsibility. The Company makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of the Company and may collect data or solicit personal information from you. The Company is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by the Company of these linked sites.
     3. Using YouTube in Kast You understand and agree that, when displaying or broadcasting any third party video, audio or other content streaming service or platform, such as YouTube, or their content or any content displayed therein (each, a “Third Party Streaming Service,” and any such related content, “Third Party Streaming Content”), on the Kast Service, you will do so at all times in compliance with the applicable terms of such Third Party Streaming Service’s user policy, terms of service, privacy policy and other applicable user terms and policies (e.g., https://www.youtube.com/t/terms) (“Third Party Streaming Terms”), and you will indemnify and hold harmless Kast, and the other Evasyst Indmenitees against any claims, losses or damages of any kind suffered by Kast and/or any other Evasyst Indemnitee resulting, whether directly or indirectly, from any failure on your part to comply with any such Third Party Streaming Terms, along with these Terms of Service and Kast’s other Community Guidelines in accordance with the terms set forth in Section 8 below under the heading “Indemnification”.
        
6. 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.
7. 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.
8. • Disclaimer; Limitations; Waivers on Liability; Indemnification.
   • 1. • Disclaimer of Warranties.
        • 1. SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
          2. NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “COMPANY PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
          3. NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. THE COMPANY DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. THE COMPANY DOES NOT WARRANT THAT THE SERVICE, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY THE COMPANY OR THROUGH THE SERVICE.
     2. • Limitations; Waivers of Liability.
        • 1. DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
             
          2. NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE, OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
          3. MONETARY LIMITATION OF LIABILITY. IN NO EVENT SHALL THE LIABILITY OF COMPANY AND ITS AFFILIATES (AND THOSE THAT THE COMPANY WORKS WITH TO PROVIDE THE SERVICES) EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, AN AMOUNT THAT IS THE LESSER OF (A) THE AMOUNT YOU HAVE PAID THE COMPANY IN THE ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY CLAIM, OR (B) US $1000.
             
          4. LIMITED REMEDIES FOR FREE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID THE COMPANY ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
             
          5. BASIS OF BARGAIN. THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY AND SHALL APPLY TO ALL CLAIMS OF LIABILITY (E.G. WARRANTY, TORT, NEGLIGENCE, CONTRACT, LAW) AND EVEN IF THE COMPANY OR ITS AFFILIATES HAS BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF THESE REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
             
          6. DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
             
     3. Indemnification. You agree to defend, indemnify, save, and hold the Company Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify a Company Party and you agree to cooperate with the Company’s defense of these claims. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this Section will survive any termination of Terms, your Account or of the Service.
9. • Dispute Resolution.
   • 1. 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 contact@kastapp.co. 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.
     2. 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.
     3. 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.
     4. 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.
     5. 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.
     6. 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.
     7. 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.
     8. 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.
     9. Survival. This Section 8 shall survive any termination of the Terms.
10. • General Provisions.
    • 1. • Updates to the Terms and Privacy Policy.
         • 1. Right to Update. The Company reserves the right, at our discretion, to change, modify, add or remove portions of these Terms and our Privacy Policy at any time by posting the amended Terms or Privacy Policy through the Service. You may also be given additional notice, such as an email message or messaging within the Service, of any changes. You will be deemed to have accepted such changes by continuing to use the Service. Except as otherwise stated, all amended terms shall automatically be effective thirty (30) calendar days after they are initially posted. The Company may also revise other policies, codes or rules at any time and the new versions will be available on www.kastapp.co or in the Service. No amendment to the Terms or Privacy Policy shall apply to any dispute of which the Company had actual notice before the date of the amendment.
           2. Seeking Consent. If the Company revises these Terms or its Privacy Policy and seeks your consent to be bound by such revised Terms or revised Privacy Policy and you do not agree to be bound by such revised Terms or revised Privacy Policy before using the Service again, then notwithstanding anything to the contrary, the Company reserves the right to terminate your Account and use of the Service.
           3. Disagreement With Terms. If at any time you do not agree to any provision of the then-current version of our Terms, the Privacy Policy or any other Company policy, rule or code of conduct relating to your use of the Service, your right to use the Service will immediately terminate, and you must immediately stop using the Service.
           4. Conflict. To the extent these Terms or the Privacy Policy conflict with any other of the Company’s terms, policies, rules, or codes of conduct, the provisions of these Terms and the Privacy Policy will prevail.
      2. Severability. If any provision of these Terms or the Privacy Policy is found invalid, illegal, or unenforceable, in whole or in part, by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity, illegality, or unenforceability without affecting the validity, legality, or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which will continue to be in full force and effect.
         
      3. 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.
         
      4. 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.
         
      5. Entire Agreement. These Terms, together with any supplemental policies, the Privacy Policy, and any other documents expressly incorporated by reference herein, contain the entire agreement between the Company and you with respect to the subject matter hereof and supersede all prior and contemporaneous understandings, agreements, representations and warranties of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent.
         
      6. No Waiver. The failure of the Company to require or enforce strict performance by you of any provision of these Terms or the Privacy Policy or failure to exercise any right under them shall not be construed as a waiver or relinquishment of the Company’s right to assert or rely upon any such provision or right in that or any other instance. The express waiver by the Company of any provision, condition or requirement of these Terms or the Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Except as expressly and specifically set forth in these Terms, no representations, statements, consents, waivers or other acts or omissions by the Company shall be deemed a modification of these Terms nor legally binding, unless documented in physical writing, hand signed by you and a duly appointed officer of the Company.
         
      7. Notices. We may notify you via postings on www.kastapp.com and via email or any other communications means through contact information you provide to us. All notices given by you or required from you under these Terms or the Privacy Policy shall be in writing, sent by certified mail, and addressed to the address in this Section 9.7. Any notices that you provide without compliance with this Section 9.7 shall have no legal effect.
         Evasyst, Inc.
         340 S Lemon Ave #9980 Walnut, CA 91789
         Attn: Terms Administrator
         
      8. 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.
         
      9. 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.
         
      10. Governing Law. The Terms and Privacy Policy shall be governed by the laws of the State of California notwithstanding its conflict of laws provisions.
          

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:

1. 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.
   
2. 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.)
3. • A statement containing the following:
     
   • 1. You have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
     2. The information in the notification is accurate, and;
        
     3. 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.”)
     
4. 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.
5. 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:
   
   Copyright Agent
   Evasyst, Inc. d/b/a Kast
   340 S LEMON AVE #9980 WALNUT, CA 91789
   Phone: 6199139441
   Email: dmca@kastapp.co

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:

1. 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.
   
2. • A statement containing the following:
     
   • 1. You will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if you reside outside the United States, the judicial district in which Company is located, and that you will accept service from the person (or an agent of that person) who submitted the copyright complaint at issue. (An example of such statement would be: “I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which Twitch is located, and will accept service of process from the claimant.”)
     2. You swear, under penalty of perjury, by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled. (An example of such statement would be: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”).
        
3. 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.
4. 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.

Repeat Infringers

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.

Retractions

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 dmca@kastapp.co 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:

1. Clearly identify the material you wish to retract.
   
2. The date of your original notification and the Claim ID, if applicable.
   
3. An electronic or physical signature (typing your full legal name is sufficient).