Terms and Conditions of Use

Streamwerks Media Terms and Conditions of Use

PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A CUSTOMER OF STREAMWERKS MEDIA. IT ALSO CONTAINS A DISPUTE RESOLUTION CLAUSE. YOU ARE RESPONSIBLE FOR BEING AWARE OF THESE TERMS OF SERVICE, WHICH MAY BE UPDATED FROM TIME TO TIME, AND WHICH ARE LOCATED AT THE BOTTOM OF YOUR PLATFORM ONCE LOGGED INTO YOUR PLATFORM (WWW.SMS.MOBILE242.COM) AND AT THE BOTTOM OF OUR WEBSITES (WWW.BINGO.TEXTMEACOUPON.COM, WWW.TEXTMEACOUPON.COM, WWW.STREAMWERKSMEDIA.COM).

1. ACCEPTANCE OF TERMS AND USE.
By purchasing and  using STREAMWERKS MEDIA ("STREAMWERKS MEDIA", "we" or "us") STREAMWERKS MEDIA or STREAMWERKS MEDIA WAP Services (collectively, the "STREAMWERKS MEDIA Service"), the CUSTOMER (“CUSTOMER,” “you,” “your”) accepts and agrees to be bound by these Terms and Conditions of Use. STREAMWERKS MEDIA may at any time modify these Terms and Conditions of Use. You can review the most current version of it by clicking on the "Terms and Conditions of Use "(“TOS,” “TERMS OF SERVICE,” TERMS OF USE,” “TERMS AND CONDITIONS OF USE”) link located at the bottom of the STREAMWERKS MEDIA, or TEXT ME A COUPON, or BINGO TEXT ME A COUPON website. The most current version will supersede all previous versions. By continuing to use the STREAMWERKS MEDIA service after changes are made, you agree to be bound by such changes. Upon completing your purchase, you agree to enter into this Agreement (the “Agreement”) with STREAMWERKS MEDIA, having offices in Katy, TX 77449, and receiving mail at PO BOX 972, Cheyenne WY 82003; which shall be effective as of the date of purchase for any STREAMWERKS MEDIA product or service.

2. FEES. CUSTOMER shall pay the fees set forth during the Term of this Agreement. STREAMWERKS MEDIA will invoice CUSTOMER for these fees on a 30-day billing cycle. CUSTOMER agrees to pre-pay the subscription fee for every month of service. CUSTOMER acknowledges that all text message overages and newly added accounts, mobile websites/applications, virtual business cards, real estate applications, and other products provided by the Streamwerks SMS platform are charged in arrears at the rate designated in their existing monthly plan. CUSTOMER shall pay all invoices within fifteen (15) days of the date of invoice. There is an additional one time set-up fee billed that includes the first month of service subscription fee. All charges and fees hereunder are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Services hereunder. Except for taxes on STREAMWERKS MEDIA's net income, CUSTOMER shall be liable for and pay all such taxes and other levies, regardless of whether included on any invoice. STREAMWERKS MEDIA may change the amount, structure, method and/or basis of the fee at any time during the term of this Agreement. CUSTOMER has the exclusive right to upgrade or downgrade their service plan at any time with 30 days’ notice in writing to STREAMWERKS MEDIA. CUSTOMER may suspend their service plan at any time with 30days’ notice in writing to STREAMWERKS MEDIA and may terminate service agreement at any time with thirty (30) days written notice.

3. GUARANTY. If CUSTOMER has been unable to utilize the services provided by STREAMWERKS MEDIA for any reason that is the fault of STREAMWERKS MEDIA, CUSTOMER shall have the right to cancel all services provided by STREAMWERKS MEDIA, and STREAMWERKS MEDIA will provide to CUSTOMER a full refund of all monies previously paid to STREAMWERKS MEDIA to CUSTOMER for the period that services were not provided. Should CUSTOMER choose to cancel service and seek a refund, CUSTOMER must provide written notice to STREAMWERKS MEDIA within thirty 30 days prior to automatic subscription renewal date. Said notice must include a detailed basis for the cancellation. Refunds shall be awarded within 60 days of written notice.

4. LICENSE; RESTRICTIONS. a) STREAMWERKS MEDIA hereby grants CUSTOMER a non-exclusive, non- transferable license to access and use the Services at CUSTOMER's place of business. CUSTOMER is prohibited from reselling, loaning or otherwise sharing the Services or divulging any related confidential information including, but not limited to passwords or instructional manuals. Except as expressly permitted in this Section, CUSTOMER may not use, reproduce, transfer, share, sublicense or transmit the Services in any form or by any means without the prior written consent of STREAMWERKS MEDIA. CUSTOMER further agrees not to modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from the Services or related software, or to permit or authorize a third party to do so. Title to the Services, and all related software, technical know-how, and intellectual property rights therein are and shall remain the exclusive property of STREAMWERKS MEDIA. CUSTOMER shall not take any action to jeopardize, limit or interfere in any manner with STREAMWERKS MEDIA's ownership of, and rights with respect to any licensed software and/or Services. b) Compliance. CUSTOMER acknowledges and agrees that, as between CUSTOMER and STREAMWERKS MEDIA, CUSTOMER is responsible for compliance with all federal, state or other applicable laws governing the use of the Services, including but not limited to laws applicable to direct marketing and privacy. CUSTOMER further acknowledges and agrees that STREAMWERKS MEDIA merely provides a routine conveyance,” as that term is defined in 15 U.S.C. § 7702 (CAN SPAM Act), in connection with the transmission of any electronic mail messages on behalf of CUSTOMER in connection with the Services. CUSTOMER also agrees to comply with STREAMWERKS MEDIA's polices and rules for use of the Services, including its e-mail transmission services, as made available to CUSTOMER and as amended by STREAMWERKS MEDIA from time to time in its sole discretion.

5. INTELLECTUAL PROPERTY RIGHTS. It is the intent of the parties that STREAMWERKS MEDIA shall own the Services, as well as all patents, copyrights, trademarks, trade secrets and other intellectual property rights associated with or appurtenant to the Services. Neither the CUSTOMER, nor its subsidiaries, affiliates, agents, or employees shall have any right to use the Services other than for the purposes set forth herein. In all cases, the Services are and shall remain the sole and exclusive property of STREAMWERKS MEDIA. CUSTOMER covenants to take no action nor commit any omission that would be adverse to STREAMWERKS MEDIA's sole and exclusive ownership of the Services. If CUSTOMER, its subsidiaries, affiliates, employees or any third parties obtain any rights of ownership in or use of the Services through operation of applicable law or otherwise, CUSTOMER agrees to and hereby transfers, grants, conveys, assigns and relinquishes exclusively to STREAMWERKS MEDIA any and all right, title and interest it has or may acquire in the Services under patent, copyright, trade secret, trademark or other law relating to intellectual property in perpetuity or for the longest period otherwise permitted by law.

6. CONFIDENTIALITY. a) CUSTOMER acknowledges that the Services are the trade secrets of STREAMWERKS MEDIA. b) Each party agrees to use good faith efforts and at least the same care that it uses to protect its own confidential information of like importance, but in no event less than reasonable care, to prevent unauthorized dissemination or disclosure of the other party's confidential information both during and after the Term of this Agreement (including without limitation, the Services). In addition, each party shall use the other party's confidential information solely as necessary for the performance of this Agreement. Confidential information will include, but is not necessarily limited to (i) non-public financial information concerning either party; (ii) information concerning either party's product line (both current and planned), research, development, CUSTOMERs, and pricing and marketing plans, unless and until publicly announced; and (iii) any information designated as confidential in writing at or prior to disclosure. c) Except as required by law, STREAMWERKS MEDIA will not disclose to any non-affiliated third party any non-public individually identifiable CUSTOMER data received from CUSTOMER without CUSTOMER's prior approval. STREAMWERKS MEDIA shall maintain at all times during the Term appropriate and reasonable safeguards to protect such individually identifiable CUSTOMER data using measures no less rigorous than those used to protect STREAMWERKS MEDIA's own CUSTOMER’S individually identifiable data. d) The restrictions in this Section 5 Confidential Information shall not apply to information which: (i) has become publicly known without breach of this Agreement or any other confidentiality obligation by the receiving party; (ii) has been given to the receiving party by a third party with a legal right to so disclose; (iii) was known to the receiving party at the time of disclosure as evidenced by its written records; (iv) was independently developed by the receiving party without reference to the other party's confidential information; or (v) is necessary to establish the rights of either party under this Agreement; or must be disclosed by the receiving party to comply with any requirement of law or order of a court or administrative body (provided that the receiving party will endeavor to notify the disclosing party of the issuance of such order and reasonably cooperate, at disclosing party's expense, in its efforts to convince the court or administrative body to restrict disclosure).

7. LIMITED WARRANTY; LIMITATION OF LIABILITY. a) STREAMWERKS MEDIA PROVIDES THE SERVICES AND SOFTWARE “AS IS”AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, ORAL, IMPLIED OR STATUTORY AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. b) STREAMWERKS MEDIA SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INJURY TO ANY PERSON OR PROPERTY WHATSOEVER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE SERVICE FOR SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, STREAMWERKS MEDIA SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, OR COSTS, INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOSS OF USE OF THE SERVICES OR SOFTWARE, LOSS OF DATA, BUSINESS INTERRUPTION. COST OF RECOVERING SOFTWARE OR DATA, COST OF SUBSTITUTE SOFTWARE OR DATA. OR OTHER SIMILAR COSTS. IN NO EVENT SHALL STREAMWERKS MEDIA'S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO STREAMWERKS MEDIA UNDER THIS AGREEMENT DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE CLAIM.

8. INDEMNIFICATION.

STREAMWERKS MEDIA does not promote, recommend or condone use of the STREAMWERKS MEDIA products or services during certain activities, including but not limited to automobile driving or other activities, where there is a risk to life or property. CUSTOMER agrees not to use the STREAMWERKS MEDIA service during such activities. STREAMWERKS MEDIA shall not be held liable by the CUSTOMER or by the CUSTOMER’S customer, for any loss through the use of, or through the participation in STREAMWERKS MEDIA products or services.

a) CUSTOMER assumes sole responsibility for all use of the Services and agrees to indemnify, defend and hold STREAMWERKS MEDIA and its affiliates, and its and their respective officers, directors, employees, agents and representatives harmless from and against any and all claims, causes of action, suits, proceedings, demands, damages, costs, expenses and liabilities of any kind whatsoever, including (without limitation) legal expenses and reasonable attorneys' fees, from third parties (“Claims”), arising out of or in any way related to (i) CUSTOMER's use of the Services, including without limitation the use or inability to use the same, or any errors or omissions in the same, or (ii) any breach by CUSTOMER of this Agreement. b) If a preliminary or final judgment shall be obtained against CUSTOMER's use of the Services by reason of a Claim that the Services infringe or misappropriate the intellectual property rights of a third party or if the Services are likely to become the subject of such a Claim, STREAMWERKS MEDIA shall at its option and expense either procure for CUSTOMER the right to continue to use the Services as provided in this Agreement, or replace or modify the Services with a version of Services that is non-infringing, but performing substantially similar functions. In the event that neither of the foregoing options is commercially reasonable in STREAMWERKS MEDIA's sole judgment, STREAMWERKS MEDIA shall cease providing the Services to CUSTOMER and refund to CUSTOMER any pre-paid license fees paid by CUSTOMER for the remainder of the Term. THE RIGHTS AND OBLIGATIONS IN THIS SECTION 7(b) ARE STREAMWERKS MEDIA'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.

9. TERMS AND TERMINATION a) The term of this agreement shall commence upon purchase and shall automatically renew on a month-to-month term unless either party provides written notice to the other party that it will not renew, such notice to be given at least thirty (30) days prior to the expiration of the then-existing Term. b) Either party may terminate this Agreement immediately for any breach of this Agreement by the other party that is not cured within thirty (30) days after receipt of written notice of the breach from the non-breaching party; provided however, such cure period shall not apply if CUSTOMER is in breach of Section 5 Confidentiality, and further provided, however, that the cure period for the breach of an obligation to pay fees when due shall be fifteen (15) days. STREAMWERKS MEDIA may terminate this Agreement at any time without cause upon thirty (30) days written notice to CUSTOMER. c) This Agreement shall be immediately terminated upon the dissolution, business closure, or bankruptcy of CUSTOMER, the filing of a bankruptcy petition by or against CUSTOMER or a general arrangement or assignment by CUSTOMER for the benefit of creditors. d) Following expiration or termination of this Agreement for any reason, all rights and licenses granted herein shall terminate and CUSTOMER shall immediately cease use of and certify to STREAMWERKS MEDIA that it has destroyed all copies of the Services and related software. e) Termination or expiration of this Agreement for any reason shall not release any party from any liabilities or obligations set forth in this Agreement that by their nature would be intended to be applicable following any such termination or expiration. f) STREAMWERKS MEDIA reserves the right to suspend the Services or terminate this Agreement in the event that a payment due remains unpaid for fifteen (15) business days after CUSTOMER has been notified payment due. g) Violation in part or whole of the Terms and Conditions of Use shall be cause for immediate suspension and/or discontinuation of service without refund. Data residing within any physical or digital property owned by STREAMWERKS MEDIA shall not be accessible by CUSTOMER until such time as the account suspension is lifted and all fees have been brought current as long as service has not been terminated pursuant to the conditions set forth above. Service termination nullifies all ownership to data residing within any physical or digital property owned or serviced by STREAMWERKS MEDIA. A fee of $45.00 will be charged to reactivate an account.

10. INJUNCTIVE RELIEF. Each party acknowledges that the Services are unique property, and that the unauthorized use or disclosure thereof shall cause STREAMWERKS MEDIA irreparable harm that could not be adequately compensated by monetary damages. Accordingly, in addition to any other remedies available to it at law or in equity, STREAMWERKS MEDIA will be entitled to injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or disclosure of confidential information or the Services.

11. GOVERNING LAW; DISPUTE RESOLUTION. a) This Agreement will be construed in accordance with and governed by the laws of the State of Texas, without regard to principles of conflicts of law. Any disputes under this Agreement shall be brought in Harris County, Texas. In the event that the Dispute Resolution section is invalidated, the parties hereto consent to the jurisdiction of any local, state or federal court in which an action is commenced and located in accordance with the terms of this Section and that is located in Harris County, Texas. The parties further agree not to disturb such choice of forum, and if not resident in such state, waive the personal service of any and all process upon them, and consent that such service of process may be made by certified or registered mail, return receipt requested, addressed to the parties as set forth herein. b) Any dispute or claim arising hereunder shall be submitted to binding arbitration in Harris County, Texas in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statutes of limitations; (ii) the appointed arbitrator must be a former or retired judge or attorney at law with at least ten (10) years experience in the substantive area of this Agreement who has no affiliation, whether implied or obvious, with either party; (iii) the award or decision of the arbitrator, which may include equitable relief, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter. c) In any action, arbitration, or other proceeding by which one party either seeks to enforce its rights under the Agreement, or seeks a declaration of any rights or obligations under the Agreement, the prevailing party will be entitled to reasonable attorney's fees and reasonable costs and expenses incurred to resolve such dispute and to enforce any final judgment. In addition, if CUSTOMER or CUSTOMER's account is referred to an attorney or collection agency for collection, CUSTOMER will pay for all collection fees, costs and expenses incurred by STREAMWERKS MEDIA, including attorneys' fees and fees of collection agencies.

12. GENERAL. a) Press Releases. STREAMWERKS MEDIA may issue press releases and other marketing and promotional material describing the relationship created by this Agreement. CUSTOMER shall have thirty (30) days to review such material prior to its release. STREAMWERKS MEDIA may use specific information previously reviewed for public release by CUSTOMER, without further approval. b) Notices. All notices and other communications to each party must be in writing and sent to the party at the address specified in this Agreement, to the email listed in this agreement or in the account profile information, or to such alternative address as either party may furnish in writing to the other from time to time. Unless otherwise agreed, notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail, or (iv) upon verification of receipt via facsimile, (iv) upon delivery of email. c) Force Majure. Neither party shall be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, natural disaster, weather related incidents, accidents, strikes or labor shortages, sabotage, Internet failure, transportation facilities shortages, fuel or materials or for failures of equipment, telecommunications facilities or third party software programs. d) Severability. If any term or condition hereof is found by a court or administrative agency to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. e) Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. A party's remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party's exercise of any other remedy. f) Entire Agreement. This Agreement represents the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings. There are no representations, warranties, promises, covenants or undertakings, except as described herein. g) Service Enhancements. STREAMWERKS MEDIA reserves the right to add or delete programs or services as part of our continued enhancement of the Services. STREAMWERKS MEDIA will make a good faith effort to give CUSTOMER thirty (30) days notice of any such changes, and will not be held liable for any unknown changes inflicted upon the system, service, or product. h) Amendment. This Agreement may not be amended or otherwise modified except by an Addendum signed by the parties hereto. i) Assignment. CUSTOMER may not sell, mortgage, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, without the express written consent of STREAMWERKS MEDIA. j) Aggregate Reports. Notwithstanding anything to the contrary contained in this Agreement, STREAMWERKS MEDIA may track, analyze, and/or create reports related to aggregate activity in connection with CUSTOMER's use of the Services and share such information with its affiliated companies. STREAMWERKS MEDIA and such companies may utilize such information to create, market, and sell products and services. k) Independent Contractors/Resellers. The relationship of the parties will be that of independent contractors. Neither of the parties will have, and will not represent that it has, any power to bind the other or to create any obligation on behalf of the other. Nothing stated in this Agreement shall be construed as constituting or as creating the relationships of employer/employee, fiduciary, principal/agent, partnership, joint venture or representative of the other. l) Non-Compete. It is the responsibility of the CUSTOMER to give written notification, along with bonafide proof of engagement, to STREAMWERKS MEDIA of any client that CUSTOMER is currently engaged in negotiating business with (within 48 hours of initial engagement) if CUSTOMER wishes to secure non-compete for client. STREAMWERKS MEDIA shall act as a White Label Consultant if CUSTOMER requests assistance in obtaining or serving a client, provided that the STREAMWERKS MEDIA agrees to assist CUSTOMER. After a period of 30 days, if CUSTOMER has not obtained or addressed the need of the client, the client shall be considered approachable by STREAMWERKS MEDIA under the Brands of STREAMWERKS MEDIA in order to obtain the client’s business or resolve the client’s need. CUSTOMER may request an extension of the White Label status from STREAMWERKS MEDIA before the 30 days has expired for a maximum of 30 additional days. After 60 days the White Label status of CUSTOMER shall expire if the client account is not obtained or if the client need has not been met. If the client account is obtained or if the need is met, the White Label status of CUSTOMER shall remain in effect so long as the client is engaged in productive business with the CUSTOMER, and shall terminate at such time as the client is no longer receiving service or the level of service requested by the client to meet the client’s business needs.. m) Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement. n) Precedent. The preprinted terms and conditions of any purchase order or other document issued by CUSTOMER in connection with this Agreement shall not be binding on STREAMWERKS MEDIA and shall not be deemed to modify this Agreement. o) Ownership of Data. Databases collected via text, web, or paper are the sole and exclusive property of CUSTOMER. This data can be downloaded and used by CUSTOMER only, and cannot be sold, transferred, used, or disseminated by any other party without the express written permission from CUSTOMER so long as the Terms and Conditions of Use, including payment for services rendered, are not violated.

13. Terms and Conditions of Use. CUSTOMER agrees to abide by the Terms and Conditions of Use, and by the agreements set forth in this Agreement. Terms and Conditions of Use shall be publicly displayed on website and updated regularly. It is the responsibility of CUSTOMER to routinely check the Terms and Conditions of Use in order to remain in compliance.

14. NOTICES. a) Do not accept this contract by purchasing any Streamwerks Media products or services before you read to these Terms and Conditions of Use. Upon completion of the purchase of a STREAMWERKS MEDIA product, the CUSTOMER acknowledges and agrees to these Terms and Conditions of Use.


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