• DREAMCAST / YOUMONITOR USER AGREEMENT
    Last Updated: 27th December 2007
  • The following documents are incorporated into this User Agreement by reference:
  • Services Fees Policy
    Privacy Policy
  • This user agreement, the documents set forth above, and any other services terms (collectively, the "Terms," or this "Agreement," or the "User Agreement") describe the terms and conditions on which Dreamcast Systems, Inc. ("we", “our” or "Dreamcast") offers a user ("Customer", "User", "you", "your" or "subscriber") access to the peer-to-peer network monitoring services ("Services") and the www.youmonitor.us web site ("Web Site"). If you have a question about this Agreement, please contact us by sending e-mail to support@dreamcastinc.com.
  • 1. Acceptance of Terms.
    By using this Web Site or any Service you agree to the Terms. We may amend the Terms at any time. Subject Section 4.2 Changes to Fees, Section below amended Terms will automatically be effective seven (7) days after we have posted the amended Terms. Your continued use of our Services will signify your acceptance of any amended Terms. If you do not agree to the changes, you may discontinue your registration and use of the Services by sending an email request to support@dreamcastinc.com . The Terms may not be otherwise amended except in a writing signed by both parties. Throughout this Agreement, (i) the phrase "in our discretion" or "in its discretion" means in Dreamcast's sole and arbitrary discretion and (ii) the term "including" means “including without limitation.” Dreamcast reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Dreamcast. Activation of any Service shall indicate Dreamcast's acceptance of this Agreement, but does not obligate Dreamcast to provide access to any or all Services, such access to be provided at the sole discretion of Dreamcast.
  • 2. Eligibility; Registration; Permission to Use Your Computer and Bandwidth to Manage the Network of Computers Running the Services.
  • 2.1. Eligibility. Use of the Services is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the foregoing, the Services are not available to minors. Services are not available to Users where use of the Services has been suspended or terminated.
  • 2.2. Registration. You must submit a complete registration form on behalf of yourself or the corporation, partnership or other legal entity that will be using the Services. By accepting this Agreement, you represent that (a) you are eighteen (18) years or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Services. Your "Registration" includes your personal information, credit card information and any Services and related fees you select. Registration through an Authorized Reseller (as defined in Section 4 below) shall be subject to such reseller’s registration process.
  • 2.3. Permission. As consideration for using the Services and receiving access to the monitoring information available via the Services, you agree and understand that:
  • 2.3.1. You will install open-source code into your website or server as specified by Dreamcast.
  • 2.3.2. Dreamcast will, and will permit third parties to, display monitoring information within the interface of the Dreamcast and/or in connection with the display monitoring information, in all cases without compensation to you. Dreamcast or the Dreamcast servers, and permits third parties to serve, advertisements within or adjacent to the content and information delivered to you by the Services. You understand and agree that Dreamcast or applicable third parties, may include content-targeted advertisements or other related information. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser.
  • 2.3.3. Dreamcast will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer (or other applicable device) for the limited purpose of facilitating the communication between, and the transmittal of data, content, information, services or features to, you and other users of the Services, and to facilitate the operation of the network of computers running instances of the Services.
    2.3.4. Dreamcast will take organizational and technical measures intended to protect the privacy and integrity of the computer resources (or other applicable device) you are utilizing, however, you acknowledge and agree that this is not a representation or warranty of Dreamcast.
  • 3. Website and Services.
  • 3.1. Right to Refuse Services. Dreamcast may refuse the Services to anyone at any time, in our discretion. Dreamcast reserves the right to discontinue, temporarily or permanently, any or all of the Services to anyone at any time, with or without notice. Dreamcast will refund you amounts it has charged you for each whole month of prepaid service for which Dreamcast refused or discontinued Services, as such amounts are determined by Dreamcast, only if (i) Dreamcast exercises its right to refuse service or discontinue under this section, and (ii) you have prepaid for the refused or discontinued Services. Dreamcast shall not be liable to you or any third-party for any termination of your access to the Service except as set forth herein.
  • 3.2. License. You grant Dreamcast a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, with full rights to sublicense (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in any information you provide us, in any media now known or not currently known, for the purpose of offering the Services.
  • 3.3. Privacy. Dreamcast will only use your information in accordance with our Privacy Policy. The Privacy Policy is part of this Agreement. Please note that when you voluntarily disclose personal information, that information may be collected and used by others.
  • 3.4. Passwords and Security. You will at all times maintain the confidentiality of your user names and passwords. If you are a corporation, partnership or other legal entity, you are responsible for all activity and all charges by such employees. If there is a breach of security through your account, you must immediately change your password and notify us at support@dreamcastinc.com . You will be liable for any unauthorized use of the Services until you notify us of the security breach.
  • 3.5. Accurate and Complete Information. You will provide to Dreamcast only true, accurate, current and complete information, including, as applicable, your credit card number and other financial information, and will update that information to keep it true, accurate, current and complete. Dreamcast, its agents, suppliers, and subcontractors have the right to recover from you any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete information.
  • 3.6. Limited Agency. You authorize Dreamcast to retrieve and post information and materials necessary to provide the Services to you, and you hereby appoint Dreamcast as your agent for this limited purpose. You permit Dreamcast to use such retrieved information and materials to accomplish the foregoing, and to communicate with Callers on your behalf.
  • 3.8. General Compliance with Laws. You will comply with all applicable laws, statutes, ordinances and regulations in your use of the Services.
  • 3.9 Service Term. The Services are offered on a monthly basis for a term which begins on the date that your Service is activated and you accept the Terms ("Activation Date") and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Dreamcast or Authorized Reseller written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are acquiring the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus a disconnect fee, if any, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse you from paying all unpaid, accrued charges due in relation to the Agreement. Upon termination, you will no longer have access to the Service. Dreamcast accepts no liability for loss arising from such termination.
  • 4. Fees.
  • 4.1. Generally. Dreamcast or its authorized reseller from whom you order the Services from ("Authorized Reseller") will charge you fees in accordance with the Dreamcast or the Authorized Reseller Fees Policy set forth at http://www.youmonitor.us/fees_policy.shtml. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using the Service and all applicable taxes.
  • 4.2. Changes to Fees. Dreamcast or the Authorized Reseller may change the Fees Policy effective seven (7) days after those changes have been posted on the Web Site and may add new fees effective immediately upon posting the new fees. We may change temporarily our fees for promotional events (for example, free minutes days) and such changes are effective when we post the temporary promotional event. If you have prepaid for services, Dreamcast or the Authorized Reseller will either maintain your existing service or refund your payment in accordance with Section 3.1.
  • 4.3. Credit Cards or Paypal. You will be required to place a credit card (Visa, MasterCard, American Express, or Discover) on file or have a valid Paypal account on file for automatic billing prior to using the Services that generate User Fees or other Services for which Dreamcast or the Authorized Reseller requires a credit card on file. You will be billed a monthly finance charge of the lower of 1.5% or the highest amount permitted by applicable law if your account becomes past due. Your account may be suspended for non-payment. You may close your account by emailing us at support@dreamcastinc.com to request closure or sending us a request using the contact us form. You will reimburse Dreamcast for any costs arising from initiation of collections activity. You agree to promptly notify Dreamcast of any changes to your credit card account number, its expiration date and/or your billing address, and you agree to promptly notify Dreamcast if your credit card or Paypal expires or is cancelled for any reason. If your credit card or Paypal account is invalid for any reason, the Service may be suspended and your account will be restricted. Dreamcast accepts no liability for any loss due to an invalid credit card or Paypal account. As the account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account, including your family, friends and co-workers.
  • 4.4. Billing Cycles. Dreamcast or the Authorized Reseller will determine your account's billing cycle, which will determine your invoicing date as well as your payment due date. Dreamcast or the Authorized Reseller may charge your credit card for any unpaid account balance at any time, but may, in its discretion, defer charging your card. Dreamcast or the Authorized Reseller may immediately charge all unpaid balances if you close your account. Without limiting any other remedy, Dreamcast or the Authorized Reseller may terminate any services immediately should Dreamcast or the Authorized Reseller be unable to charge your credit card.
    or receive funds via your Paypal account.
  • 4.5. Subscription Renewal The credit card or Paypal account that you provide as part of the registration data will be automatically and immediately billed. Subscriptions paid by either way will automatically renew as specified in Section 3.9 above, unless you affirmatively cancel your subscription. Some other services or extra features may or will also renew automatically based on your active wish to do so. Each month that you have an active Dreamcast account, you agree and reaffirm that Dreamcast is authorized to charge your credit card or Paypal account for the subscription and extra service fee’s. Payment for the Service is billed on a monthly or annually basis (as selected by the Accounts Holder).
  • 4.6. Other Terms. Some of the Services may have additional terms of use. Any such terms will be displayed in connection with the applicable services and are incorporated into these Terms by reference.
  • 4.7. Discounts, Credits and Refunds. Dreamcast or the Authorized Reseller may, in its discretion, offer discounts, coupons or promotions that may reduce applicable fees. Users may request credits to their account by contacting Dreamcast or the Authorized Reseller customer service. Credits or refunds will be granted at Dreamcast or the Authorized Reseller’s sole discretion.
  • 4.8. Use of Free Services and Services During Beta. In the event the Services are provided to you at no charge or are using a non-production (beta) version of the Services, You agree to utilize the Services only for non-personal or commercial purposes and not for the benefit of any third party or charge any person for the use or distribution of the Services. You agree that you would run an open source script as specified by Dreamcast on your computer and turn your website into a YMU node. The installation should be made within thirty days (30) days of your initial use of the no-charge Services or your use of the Services shall be suspended. Dreamcast accepts no liability for loss arising from such script or for any damage arising from making your website into a YMU node.
  • 5. Limitations on Use of Services.
  • 5.1. Terms. Services made available by Dreamcast, including software (collectively, "Materials") is the intellectual property of Dreamcast and/or its suppliers. Your use of the Materials are governed by the terms of the end user license agreement, if any, which accompanies or is included with the Materials ("License Agreement"). You may not install or use any Materials that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
  • 5.2. License. For any Materials not accompanied by a license agreement, Dreamcast grants you, the user, a personal, nontransferable license to use the Materials for viewing and otherwise using the Dreamcast website in accordance with these Terms of Use, and for no other purpose provided that you keep intact all copyright and other proprietary notices.
  • 5.3. Intellectual Property. All Materials are owned by Dreamcast and/or its suppliers and is protected by copyright laws and international treaty provisions. Any reproduction or redistribution of the Materials are expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Without limiting the foregoing, copying or reproduction of the Materials to any other server or location for further reproduction or redistribution is expressly prohibited.
  • 5.4. Export Control Laws. You acknowledge that the Materials, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the USA. You agree not to export or re-export the Materials, directly or indirectly, to any countries that are subject to USA export restrictions.
  • 5.5. No Unauthorized Use. Dreamcast respects copyright law and expects our Users to do the same. Unauthorized copying or distribution of copyrighted works is an infringement of the copyright holders' rights. In our discretion and in appropriate circumstances, Dreamcast may terminate the accounts of users who infringe upon the copyright, or other proprietary rights of a third party.
  • 5.6. Prohibited Uses. You agree to use the Service only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Dreamcast’s sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Dreamcast reserves the right to terminate your Service immediately and without advance notice if Dreamcast, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, if any, all of which immediately become due and payable. You are liable for any and all use of the Service by any person making use of the Service provided to you and agree to indemnify and hold harmless Dreamcast against any and all liability for any such use that fails to comply with this Section 5.6. If Dreamcast, in its sole discretion believes that you have violated the above restrictions, Dreamcast may forward the objectionable material, as well as your communications with Dreamcast and your personally identifiable information to the appropriate authorities for investigation and prosecution.
  • 5.7. Other Restrictions. Notwithstanding anything in this Agreement to the contrary, you agree that you will not:
  • 5.7.1. operate or utilize the Services in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance;
    5.7.2. operate or utilize the Services, including the content, monitoring information, services and features contained on or through the Services, in a manner that violates the Terms of Service or Privacy Policy;
    5.7.3. sell, assign, rent, lease, distribute, export, import, act as intermediary or provider, act as a service bureau, or otherwise grant rights in the Services, including, without limitation, through sublicense, to any other person or entity;
    5.7.4. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Services and/or data and/or content or monitoring information transmitted, processed or stored by Dreamcast or other users of the Services;
    5.7.5. collect any information or communication about the users of the Services by monitoring, interdicting or intercepting any process of or communication initiated by the Services or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
    5.7.6. use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to monitor, distort, delete, damage or disassemble the Services or its ability to communicate and function with other computers running the Services;
    5.7.7. with the exception of those actions permitted by your manual use of the user interface provided as part of the Services, take any action, including downloading and/or using third party software, that (1) modifies the settings of the Services as it functions with your computer, or (2) otherwise modifies, alters, blocks or interferes with the functioning of the Services;
    5.7.8. attempt to hack the Services or any communication initiated by the Services or to defeat or overcome any encryption and/or other technical protection methods implemented by Dreamcast with respect to the Services and/or data and/or content or monitoring information transmitted, processed or stored by Dreamcast or other users of the Services;
    5.7.9. interfere with or in any manner compromise any of Dreamcast's security measures; or
    5.7.10. alter, modify, delete, or otherwise interfere with or in any manner compromise any content, monitoring information, advertising, services and/or features contained on or through the Services, including, without limitation, the Service’s advertising and/or content delivery and display functionality.
  • 5.8 Loss of Service Due to Power Failure. You acknowledge and understand that the Service does not function in the event of power failure.
  • 7. Indemnity and Disclaimer
  • 7.1. Indemnity. You will, at your own expense, indemnify, defend and hold Dreamcast, it Authorized Resellers and suppliers and the affiliates, officers, directors, agents, and employees of such harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content submitted by you to us; (b) any fraud, manipulation, or other breach of this Agreement by you; (c) any third-party claim, action or allegation brought against Dreamcast arising out of or relating to a dispute with you over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; (d) your violation of any law or the rights of a third party; or (e) your use, or Dreamcast's provision, of the Services or use of your account by any third party. Dreamcast will have the right to participate in its defense and hire counsel of its choice, at your expense. You will not settle any action or claims on Dreamcast's behalf without the prior written consent of Dreamcast.
  • 7.2. Disclaimer. Neither Dreamcast nor its suppliers and Authorized Resellers will be liable for (i) any loss of business, profits or goodwill, loss of use or data, interruption of business or for any indirect, special, incidental or consequential damages of any character, (however arising, including negligence) arising out of or in connection with this agreement even if Dreamcast or its supplier or Authorized Resellers is aware of the possibility of such damages, or (ii) any damages that result in any way from your use or inability to use the Services, or that result from errors, defects, omissions, delays in operation or transmission, or any other failure of performance of the Services. Our liability, and the liability of our suppliers and Authorized Resellers, to you or any third parties in any circumstance is limited to the greater of (a) the amount of fees you pay to us in the 6 months prior to the action giving rise to liability, or (b) $100. No advice or information from Dreamcast, whether oral or written, shall create any warranty not expressly stated in the Terms of Use.
  • 8. General.
  • 8.1. Termination at Dreamcast Discretion. In our discretion, we may immediately issue a warning, temporarily suspend, or terminate your use of the Services if you breach any provision of this Agreement. This Section does not limit any other remedies that may be available to Dreamcast.
  • 8.2. Third Party Services. Dreamcast services rely in part on the proper functioning and interaction of third party, services and software with the Dreamcast website and software. Failure of, or changes to, or misconduct by such third parties or their websites, services or software may affect our provision of services. Dreamcast is not liable for any third party actions or omissions.
  • 8.3. No Agency. Except for the limited purpose stated in the 'Limited Agency' Section, you and Dreamcast are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
  • 8.4. Notices. Except as explicitly stated otherwise, any notices will be given by email to support@dreamcastinc.com (in the case of Dreamcast) or to the email address you provide to Dreamcast during the registration process (in your case), or such other address as the party will specify. Notice will be deemed given twenty four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Dreamcast during the registration process. In such case, notice will be deemed given three (3) days after the date of mailing.
  • 8.5. Arbitration. Any controversy or claim in any way arising out of or relating to this Agreement will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted in Santa Clara County, California and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or Dreamcast may seek any interim or preliminary relief from a court of competent jurisdiction in California necessary to protect the rights or property of you or Dreamcast pending the completion of arbitration.
  • 8.6. Governing Law. California law will govern this Agreement, except for the body of law relating to conflicts of law. Subject to the Arbitration Section, venue for any legal action will be the state courts of San Mateo County, California, or the federal courts of the Northern District of California. The prevailing party in any litigation in connection with this Agreement will be entitled to recover from the other party its costs and reasonable attorneys' fees and other expenses.
  • 8.7. Waivers. A party's failure to enforce any provision of this Agreement shall not be a waiver of the provision or the right to enforce it at a later time.
  • 8.8. Entire Agreement. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. You agree that you are not entering into this Agreement in reliance on any statements or representations other than those set forth herein. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced.
  • 8.9. Assignment. This Agreement and your user names and passwords are not assignable, transferable or sub licensable by you without Dreamcast's prior written consent, and any such conveyance will be null and void.
  • 8.10. Attorneys' Fees. The prevailing party in any litigation in connection with this Agreement will be entitled to recover from the other party its costs and reasonable attorneys' fees and other expenses.
  • 8.11. Electronic Signatures. You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Dreamcast to show your acceptance of this Agreement and/or your agreement to use the Services), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
  • 8.12. Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.
  • 8.13. Headings. Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement will control. The use of headings is for convenience and will not affect the interpretation of this Agreement.