This Terms of Service was last amended and effective since March 16, 2018.
IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.
Please read carefully the following provisions of these Terms of Use (the “Agreement” or “Terms of Use”). This is a legal agreement between you and miniEcho (“miniEcho”, “we”, or “us) regarding the use of our online and/or mobile services, website, and software provided by us (collectively known as the “miniEcho Service”). By accessing or using the miniEcho Service, you agree that you have read, understood, and agree to be bound by these Terms of Use, whether or not you are a registered user of the miniEcho Service.
We reserve the right to amend this Agreement at any time by notifying you as provided in this Agreement, provided that no notice shall be required or given for non-substantive changes to the Agreement. If we substantively amend This Agreement, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account. Your continued use of the miniEcho Service after any such change takes effect constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, your only remedy shall be to not use or access (or continue to access) the miniEcho Service. This Agreement applies to users registered as Streamer (“Streamer”), Captionist (“Captionist”) all visitors, users, and others who access the miniEcho Service (“Users”).
USE OF OUR SERVICE
1. ELIGIBILITY
You may use the miniEcho Service only if you can form a binding contract with miniEcho, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. If you are under 18, your parent or guardian must enter into this Agreement on your behalf, and will be responsible for your use of and access to the miniEcho Service. Also, if you are under 18, you will be prohibited from registering as a Captionist. Any use or access to the miniEcho Service by anyone under 13 is prohibited and in violation of this Agreement. If you are under 13, please do not attempt to register for the miniEcho Service or send any information about yourself to us, including your name, address, telephone number, or email address. If we learn that we have collected personal information from anyone under age 13 without verification of parental consent, or anyone under 18 registered as a Captionist, we will delete that information as quickly as possible. miniEcho reserves all rights not expressly granted under this Agreement. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
2. MINIECHO ACCOUNT
You must create an account in order to gain access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You may never use another User’s account without permission. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify miniEcho immediately of any breach of security or unauthorized use of your account. miniEcho will not be liable for any losses caused by any unauthorized use of your account.
By providing miniEcho your email address, you consent to our using that email address to send you miniEcho Service-related notices, including any notices required by law, in lieu of communication by snail mail. We may also use your email address to send you other messages, such as changes to features of the miniEcho Service and special offers. If you do not want to receive such email messages, you may opt out by sending us a request at optout@miniecho.com. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. Please note that if you do not want to receive legal notices from us, including without limitation a notice that this Agreement has changed, those legal notices will still govern your use of the miniEcho Service. We will post legal notices to the miniEcho Service, and you are responsible for reviewing such legal notices for changes. Please see our Privacy Notice for more details.
3. SERVICE RULES
You agree not to engage in any of the following prohibited activities in connection with the miniEcho Service: (i) copying, distributing, or disclosing any part of the miniEcho Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the miniEcho Service in a manner that sends more request messages to the miniEcho servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the miniEcho Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the miniEcho Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the miniEcho Service; (viii) using the miniEcho Service for any commercial purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the miniEcho Service; (xi) accessing any content on the miniEcho Service through any technology or means other than those provided or authorized by the miniEcho Service; (xii) bypassing the measures we may use to prevent or restrict access to the miniEcho Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the miniEcho Service or the content therein, or (xiii) decompiling, reverse engineering, or otherwise attempting to obtain the source code of the miniEcho Service.
You may not access or use the miniEcho Service if you work with or for a competitor, except with miniEcho’s prior written consent. In addition, you may not use or access the miniEcho Service for purposes of monitoring the performance or functionality for a competitor or for any third party, or for any other benchmarking or competitive purposes and you may not share any benchmarking data regarding the miniEcho Service usage with any third party without miniEcho’s prior written consent.
We may, without prior notice, change the miniEcho Service, stop providing the miniEcho Service or features of the miniEcho Service (to you or generally), or create usage limits for the miniEcho Service. You agree that miniEcho has no responsibility or liability for the deletion or failure to store any documents, data or other content maintained or uploaded by you to the miniEcho Service. We may permanently or temporarily terminate or suspend your access to the miniEcho Service without notice or liability to miniEcho, for any reason or for no reason, including if in our sole determination you violate any provision of this Agreement. Upon termination of this Agreement or your access to the miniEcho Service for any reason or no reason, you will continue to be bound by the terms of this Agreement which, by their nature, should survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
4. USER CONTENT
You are solely responsible for all data (“User Content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service.
You agree not to upload User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you upload does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant that your User Content and miniEcho’s use thereof as contemplated by this Agreement and the miniEcho Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
miniEcho takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the miniEcho Service. You acknowledge and agree that miniEcho may preserve your User Content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of miniEcho, its users and the public. You understand that the technical processing and transmission of the miniEcho Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices
By uploading any User Content you hereby grant and will grant miniEcho and its affiliated companies a non-exclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the miniEcho Service, in any form, medium or technology now known or later developed.
5. Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the miniEcho Service, you may contact our Designated Agent at the following contact:
miniEcho
Email: copyright@miniecho.com
Any notice alleging that materials hosted by or distributed through the miniEcho Service infringe intellectual property rights must include the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
A description of the material that you claim is infringing and where it is located on the miniEcho Service;
Your address, telephone number, and email address;
A statement by you that you have a good faith belief that the use of those materials on the miniEcho Service is not authorized by the copyright owner, its agent, or the law; and
A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. miniEcho will promptly terminate without notice the accounts of users that are determined by miniEcho to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the miniEcho Service at least twice.
6. CONFIDENTIALITY
Any materials or data that you provide to miniEcho for the purpose of providing the miniEcho Service will be your “Confidential Information,” except to the extent such documents (a) are known to miniEcho prior to receipt from you from a source other than one having an obligation of confidentiality to you; (b) become known (independently of disclosure by you) to miniEcho directly or indirectly from a source other than one having an obligation of confidentiality to you; or (c) become publicly known or otherwise cease to be secret or confidential, except through a breach of this Section by miniEcho. miniEcho will use the Confidential Information solely for the purpose of providing the miniEcho Service to you (the “Permitted Purpose”). miniEcho will not, without your prior consent, disclose to any third party your Confidential Information, other than furnishing such Confidential Information to our directors, officers, employees, agents, consultants, contractors, representatives or affiliated entities (collectively, “Associated Persons”) who need to have access to such Confidential Information in connection with the Permitted Purpose. miniEcho will use at least reasonable care to protect the confidentiality of your Confidential Information. In the event that miniEcho is required by law to make any disclosure of any of your Confidential Information, by subpoena, judicial or administrative order or otherwise, miniEcho will use commercially reasonable efforts to give you notice of such requirement (to the extent legally permissible) and will permit you to intervene in any relevant proceedings to protect your interests in your Confidential Information
7. FEES
To use the miniEcho Service, you will be required to make one or more payments via PayPal. You represent and warrant to miniEcho that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay miniEcho the amount that is specified by the miniEcho Service in accordance with the terms therein and this Agreement. miniEcho reserves the right to change our prices. If we change our prices, we will provide notice of the change on the miniEcho website or in email to you, at our option. Your continued use of the miniEcho Service after the price change becomes effective constitutes your agreement to pay the changed amount.
If miniEcho agrees, in its sole discretion, to invoice you for your receipt of the miniEcho Service (rather than requiring you to pay all fees by credit card), you must nevertheless provide miniEcho with your credit card information (as reasonably requested by miniEcho) and promptly update such information with any changes that may occur. If you fail to pay any invoices within 30 days of the date of the invoice, miniEcho will notify you by email of the overdue charge and, if the invoice remains unpaid, miniEcho will charge your credit card the full amount owing under the invoice on the 35th day following the date of the invoice. You hereby authorize us to charge any such overdue amounts to your credit card on file and acknowledge that miniEcho may suspend its provision to you of the miniEcho Service if any amounts remain unpaid. You may be required to pay all subsequent fees by credit card if you fail to pay an invoice within 35 days of the invoice date. miniEcho will only remove a credit card on file at your request if your account balance is $0 and there are no miniEcho Services pending for you.
END USER LICENSE GRANT
8. MINIECHO SERVICE
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the miniEcho Service for your personal, non-commercial use, as permitted by the features of the miniEcho Service. miniEcho reserves all rights not expressly granted herein in the miniEcho Service and the miniEcho Content (as defined below). miniEcho may terminate this license at any time for any reason or no reason.
9. MOBILE SOFTWARE
We may make available software to access the miniEcho Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile miniEcho Service. miniEcho does not warrant that the Mobile Software will be compatible with your mobile device. miniEcho hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one miniEcho account on one mobile device owned or leased solely by you, for your personal, non-commercial use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and/or other proprietary rights notices on the Mobile Software. You acknowledge that miniEcho may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and miniEcho or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof).
10. MOBILE SOFTWARE FROM APPLE APP STORE
This paragraph is intended to apply to you if you have downloaded the Mobile Software from the Apple App Store. miniEcho and you acknowledge that this Agreement is concluded between miniEcho and you only, and not with Apple Inc. (“Apple”), and as between miniEcho and Apple, miniEcho, not Apple, is solely responsible for the Software and miniEcho Services and the content thereof. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Software. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
This Agreement incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the “Mobile Software” is considered the “Licensed Application” as defined in the LAEULA and “miniEcho” is considered the “Application Provider” as defined in the LAEULA. If any terms of this Agreement conflict with the terms of the LAEULA, the terms of this Agreement shall control.
11. MOBILE SOFTWARE FROM GOOGLE PLAY STORE
This paragraph is intended to apply to you if you have downloaded the Mobile Software on a device powered by the Android operating system. miniEcho and you, the end‐user of the Mobile Software and miniEcho Services, acknowledge that the Agreement is entered into by and between miniEcho and you. miniEcho is solely responsible for the Software and miniEcho Services. Should you have downloaded the Software from the Google Play Store located online at https://play.google.com/store. You acknowledge that you have reviewed the Android Market Terms of Service (located online at https://play.google.com/about/play-terms.html) and the Android Market Business and Program Policies (located online at http://play.google.com/about/play-terms.html). You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
12. MINIECHO PROPRIETARY RIGHTS
Except for your User Content, the miniEcho Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the “miniEcho Content”), and all Intellectual Property Rights related thereto, are the exclusive property of miniEcho and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the miniEcho Service. Use of the miniEcho Content or materials on the miniEcho Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
13. PREMIUM SERVICES
From time to time, miniEcho may provide additional features and/or miniEcho Services that you pay for (“Premium miniEcho Services”). miniEcho may also offer from time to time in its sole discretion, certain Premium miniEcho Services for free, whether for a trial period or otherwise. Unless expressly stated otherwise, references in this Agreement to the miniEcho Service include the Premium miniEcho Services.
14. PRIVACY
For information about how miniEcho protects your privacy, please read the miniEcho Privacy Notice. This policy explains how miniEcho treats your personal information, and protects your privacy, when you use the miniEcho Service.
15. DELIVERY TERMS OF SERVICE
miniEcho does not guarantee delivery of service between Streamers and Captionists. However, miniEcho will undertake service delivery to complete the assigned work in the shortest amount of time possible. All businesses will be handled in English, unless we decide to provide non-English service out of goodwill which may or may not be available at further requests. Where time commitments are explicitly agreed on, the time indicated is confined to business days only in the Australian Eastern Standard Time Zone. For example, 24 hour delivery equates to 1 business day, 48 hour delivery equates to 2 business days and so forth. Our standard hours of service are 9am to 6pm Monday-Friday, Australian Eastern Standard time. Additional support hours and after-hour service is available by inquiry.
16. TRANSLATED CAPTION OUTPUT STYLE
miniEcho has guidelines for Captionists, however it is up to Captionists to output inquired work in their own style. We consider this style as fun, engaging and this option is frequently used by independent captioning entertainers. miniEcho does not guarantee any amount of accuracy in translation or quality of service provided by the Captionists.
17. SECURITY
miniEcho cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
18. THIRD PARTY LINKS
The miniEcho Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by miniEcho. miniEcho does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third party website from the miniEcho Service, you do so at your own risk, and you understand that this Agreement and miniEcho’s Privacy Policy do not apply to your use of such sites. You expressly relieve miniEcho from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the miniEcho Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such third parties. You agree that miniEcho shall not be responsible for any loss or damage of any sort relating to your dealings with such third parties.
19. INDEMNITY
You agree to defend, indemnify and hold harmless miniEcho and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors (collectively, the “miniEcho Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the miniEcho Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties you make in this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the miniEcho Service with your username, password or other appropriate security code.
20. NO WARRANTY
THE MINIECHO SERVICE AND ANY PRODUCT OR SERVICE YOU PURCHASE THROUGH THE MINIECHO SERVICE (“PRODUCT”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MINIECHO SERVICE AND THE PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MINIECHO, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE MINIECHO SERVICE OR THE PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MINIECHO SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE MINIECHO SERVICE.
MINIECHO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE MINIECHO SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MINIECHO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
IF YOU DOWNLOADED THE MOBILE SOFTWARE FROM THE APPLE APP STORE, YOU FURTHER ACKNOWLEDGE THAT APPLE HAS NO RESPONSIBILITY FOR ADDRESSING ANY CLAIMS RELATING TO THE SOFTWARE OR MINIECHO SERVICES OR YOUR POSSESSION AND/OR USE OF THE SOFTWARE OR MINIECHO SERVICES, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE SOFTWARE OR MINIECHO SERVICES FAIL TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
21. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE MINIECHO PARTIES BE LIABLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR ANY LOSSES, LIABILITIES, CLAIMS OR DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, OR ANY OTHER DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE AND/OR ANY OF THE MINIECHO SERVICES, THESE TERMS OF USE OR THE PERFORMANCE, SUSPENSION, TERMINATION OR BREACH HEREOF, EVEN IF MINIECHO OR ANY OTHER MINIECHO PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE MINIECHO PARTIES SHALL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM THESE TERMS OF USE OR USE OF THE SOFTWARE OR ANY OF THE miniEcho SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL MINIECHO’S (OR APPLE’S IF YOU DOWNLOADED THE SOFTWARE FROM THE APPLE APP STORE) TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT YOU HAD PAID TO MINIECHO OVER THE PRECEDING THREE MONTHS PERIOD.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR MINIECHO SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN MINIECHO AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE MINIECHO SERVICES. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF MINIECHO ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE MINIECHO PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE MINIECHO PARTIES.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
GENERAL
22. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed under the laws of the New South Wales, excluding that body of law related to choice of laws, and of Australia. If a lawsuit or court proceeding is permitted under these Terms of Use, any such lawsuit or court proceeding shall be brought in the Parramatta, New South Wales (if under State law) or the Sydney of Australia (if under Federal law), and each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of any such action, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. If you refuse or otherwise fail to fulfill any of your material obligations pursuant to this Agreement, including, without limitation, any indemnity obligation hereunder, miniEcho shall be entitled, in addition to any other rights and remedies available to it hereunder or otherwise at law or in equity, to reimbursement for its costs and expenses (including court costs and reasonable fees for attorneys and expert witnesses) incurred with respect to bringing and maintaining any legal action regarding any such matter; and (iii) any claim or legal action initiated by you must be brought individually and shall not be consolidated as part of a group or class action lawsuit.
23. Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and miniEcho in the most expedient and cost effective manner, you and miniEcho agree that every dispute arising in connection with these Terms of Use will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms of Use, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Use. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MINIECHO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 23.A., nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and miniEcho will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting miniEcho.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified Australia Post (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or miniEcho may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or miniEcho must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, miniEcho will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by miniEcho in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with these Terms of Use, miniEcho will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Newcastle County, Delaware, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse miniEcho for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND MINIECHO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and miniEcho agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If miniEcho makes any future change to this arbitration provision, other than a change to miniEcho’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to miniEcho’s address for Notice, in which case your account with miniEcho will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If Section 23.F. is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to these Terms of Use.
24. NOTICE TO STREAMER USERS
miniEcho Services do not include guarantee of available Captionists at any given time. If a Streamer wishes to receive refunds, a Streamer must go through miniEcho’s refund process in order to receive remaining balance back to their original payment form. Failure to comply with miniEcho’s refund process and Refund Policy may result in temporary or permanent account termination.
25. NOTICE TO CAPTIONIST USERS
Captionists are contractors working as a freelancer for miniEcho. miniEcho does not guarantee any amount of available work nor minimum hours per week. Payments are given via PayPal without deducting tax, therefore taxation must be handled by Captionists themselves. Payments are given on weekly basis upon request, and miniEcho will hold a Captionist's balance until next payment request if a Captionist does not request payment for that week. Payment request due dates may change, thereby it is stated on Payment Request page of the miniEcho website, which is only accessible by Captionists and miniEcho’s employees. miniEcho can exclude upto last 3 days of work from the payment in order to protect itself.
26. NOTICE TO AUSTRALIAN USERS
Pursuant to A New Tax System (Goods and Services Tax) Act 1999, additional 10% of Goods and Services Tax (“GST”) will be imposed on all goods and services provided by miniEcho. You relieve miniEcho from all liabilities that may arise from failure, refusing or attempting to avoid GST which may result in legal action by the State.
miniEcho ask all Australian taxpayer Captionists to provide their own Australian Business Number (“ABN”). Captionists who are Australian taxpayers must have their own ABN, and will be given 10% GST fee on top of usual payment. It is Captionists’ duty to comply with the law and pay taxes appropriately. Failure, refusing or attempting to avoid ABN to miniEcho may result in legal action by the State, and hereby you agree that failure to provide your ABN to miniEcho is your liability in its entirety.
27. ENTIRE AGREEMENT / SEVERABILITY
This Agreement, together with any amendments and any additional agreements you may enter into with miniEcho in connection with the miniEcho Service, shall constitute the entire agreement between you and miniEcho concerning the miniEcho Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
28. NO WAIVER
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and miniEcho’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
29. THIRD PARTY BENEFICIARIES AND AGREEMENTS
If you downloaded the Mobile Software from the Apple App Store, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof. You agree to comply with, and your license to use the Mobile Software and miniEcho Service is conditioned upon your compliance with, all applicable third-party terms of agreement, as may be applicable, when using the Mobile Software and/or miniEcho Service.
30. ASSIGNMENT
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by miniEcho without restriction or notice.
31. NOTICES
We may provide notices, whether such notices are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, Apple App Store or Google Play Store, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
32. CONTACT US
Should you wish to contact us with any questions, complaints or claims with respect to the miniEcho Service, you should visit the miniEcho website at www.miniecho.com or email at contact@miniecho.com.
