Terms & Conditions May 2020
Changes to the Agreements
Occasionally we may, in our discretion, make changes to the Service and Agreements. When we make changes to the Agreements that we consider material, we’ll notify you through the Service. By continuing to use the Service after those changes are made, you are expressing and acknowledging your acceptance of the changes.
License and Assignment
The Service and the content provided through it are the property of the Company or the Company’s licensors, and we grant you a limited, non-exclusive, revocable license to make personal, non-commercial use of the Service and to receive the media content made available through the Service in your Local Country, based on the Subscription or Trial, you have selected (the “License”). This License shall remain in effect for a period of 20 years unless terminated by you or the Company. Our software applications are licensed, not sold, to you, and we retain ownership of all copies of our software applications even after installation on your Devices. We may assign these Agreements or any part of them without restrictions. You may not assign these Agreements or any part of them, nor transfer or sub-license your rights under this License, to any third party. All of the Company’s trademarks, service marks, trade names, logos, domain names, and any other features of the Company brand are the sole property of the Company. This License does not grant you any rights to use the Company’s trademarks, service marks, trade names, logos, domain names, or any other features of the Company brand, whether for commercial or non-commercial use. You agree to abide by the terms of this Agreement, and not to use the Service (including but not limited to its content) in any manner not expressly permitted by the Terms. Third party software libraries included in the Service are licensed to you either under these Terms, or under the relevant third party software library’s license terms as published in the help or settings section of our desktop and mobile client and on our website, where applicable.
User Generated Content
Where available, you may post, upload and/or contribute (“post”) content to the Service, including pictures, text and playlist compilations (“User Content”). You represent that you have the right to post any User Content which you post to the Service, and that such User Content, or its use by us as contemplated by this Agreement, does not violate these Agreements, applicable law, or the intellectual property rights of others. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any User Content that you post on or in connection with the Company. This license lasts until you terminate your account, except in the case of User Content that you have published, made public and/or share with others. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content that you post to the Service, except that, where applicable under Local Country law, you agree to waive your right to be identified as the author of any User Content on the Service and your right to object to derogatory treatment of such User Content. We do not monitor, review, or edit User Content, but reserve the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in our sole discretion, violates these Agreements. We may take these actions without prior notification to you. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content. We are not responsible for User Content nor do we endorse any opinion contained in User Content. Please notify us immediately if you believe that any User Content infringes your intellectual property rights, or if you believe that any User Content does not comply with the User Guidelines (Section 8 below) or that your rights under applicable law have been otherwise infringed by any User Content.
In consideration for the rights granted to you under these Terms, you grant us the right (a) to allow the Service to use the processor, bandwidth and storage hardware on your Device in order to facilitate the operation of the Service, (b) to provide advertising and other information to you, if you subscribe to the Free Service, and (c) to allow our business partners to do the same. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, worldwide license to use, reproduce, make available to the public, publish, translate and distribute any User Content that you post on or otherwise provide through the Service. These Terms are not intended to grant rights to anyone except you and the Company, and in no event shall these Terms create any third party beneficiary rights. Any failure by the Company to enforce these Terms or any provision thereof shall not waive the Company’s right to do so.
We’ve established a few ground rules for you to follow when using the Service, to make sure the Service is enjoyable for everyone. Please follow these rules and encourage other users to do the same. We respect intellectual property rights and expects you to do the same. This means, for example, that the following is not permitted: (a) Copying, reproducing, “ripping”, recording, or making available to the public any part of the Service(s) or content delivered to you via the Service(s), or otherwise any making use of the Service which is not expressly permitted under these Terms; (b) using the Service to import or copy any local files you do not have the legal right to import or copy in this way; (c) reverse-engineering, decompiling, disassembling, modification or creating derivative works based on the Service(s) or any part thereof; (d) circumventing any technology used by the Company, its licensors, or any third party to protect content accessible through the Service; (e) renting or leasing of any part of the Services; (f) circumventing of any territorial restrictions applied by the Company; (g) artificially increasing play count or otherwise manipulating the Services by using a script or other automated process; (h) removing or altering any copyright, trademark or other intellectual property notices contained on or provided through the Service; (i) providing your password to any other person or using any other person’s user name and password. Please respect us and other users of the Service. Don’t engage in any activity on the Service or upload User Content, including registering and/or using a username, which is or includes material that (a) is offensive, abusive, defamatory, pornographic or obscene; (b) is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to, violations of intellectual property rights, privacy rights or proprietary rights of the Company or a third party; (c) includes personal data of third parties or is intended to solicit such personal data, (d) includes malicious content such as malware, trojan horses or viruses, or otherwise interferes with any user’s access to the Service; (e) is intended or does harass or bully other users; (f) impersonates or misrepresents your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading; (g) uses automated means to artificially promote content; (h) involves the transmission of unsolicited mass mailing (“spam”), junk mail, chain letter, or similar, including through our inbox; (i) involves commercial or sales activities, such as advertising, contests, sweepstakes, or pyramid schemes; (j) promotes commercial products or services; (k) interferes with the Service, tampers with or attempts to probe, scan, or test for vulnerabilities in the Service or our computer systems or network, or breaches any of our security or authentication measures, or (l) conflicts with the Agreement, as determined by us. You agree that we may also reclaim your username for any reason. Please be thoughtful about what you make public on the Website. The Service includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public, as further described in your account settings. Remember that shared or publicly available information may be used and re-shared by other users on the Website or across the web, so please use the Service carefully and manage your account settings regularly. We have no responsibility for your choices to make any actions or material public on the Service or Website. Where available, your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately.
Technology limitations and modifications
We will make reasonable efforts to keep the Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Service, with or without notice, all without liability to you for any interruption, modification, or discontinuation of the Service or any function or feature thereof. You understand and agree that the Company has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service.
Term and Termination
These Terms will continue to apply to you until terminated by either you or us. We may terminate the Terms or suspend your access to the Service at any time, including in the event of your actual or suspected unauthorized use of the Service or non-compliance with the Terms. If you or the Company terminate the Terms, or if the Company suspends your access to the Service, you agree that the Company shall have no liability or responsibility to you to the fullest extent permitted under applicable law.
We endeavor to provide the best service we can, but you understand and agree that THE SERVICE IS PROVIDED “AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE SERVICE AT YOUR OWN RISK. WE DISCLAIM ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. In addition, we do not warrant, endorse, guarantee or assume responsibility for any Third Party Applications, Third Party Application content, User Content, or any other product or service advertised or offered by a third party on or through the Service or any hyperlinked website, or featured in any banner or other advertising. You understand and agree that we are not responsible or liable for any transaction between you and third-party providers of Third Party Applications or products or services advertised on or through the Service. As with any purchase of a product or service through any medium or in any environment, you should use your judgment and exercise caution where appropriate. No advice or information whether oral or in writing obtained by you from us shall create any warranty on behalf of us in this regard. Some aspects of this section may not apply in some jurisdictions.
Limitation of Liability
You agree that, to the extent permitted by applicable law, your sole and exclusive remedy for any problems or dissatisfaction with the Service, the Third Party Applications or the Third Party Application content is to uninstall any of our software and to stop using the Service, the Third Party Applications or the Third Party Application content. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, CONSULTANTS, ATTORENYS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS OR LICENSORS BE LIABLE FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER THE COMPANY HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (ii) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO THE COMPANY DURING THE PRIOR THREE MONTHS IN QUESTION. EXCEPT FOR LIABILITY ARISING UNDER INDEMNIFICATION, EACH PARTYS TOTAL CUMULATIVE LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID OR OWING TO YOU HEREUNDER IN THE TWELVE(12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANY LANGUAGE OR PROVISION TO THE CONTRARY, THE COMPANY’S LIABILITY UNDER ANY ACTION ARISING OUT OF OR FROM THIS AGREEMENT SHALL NOT EXCEED $1,000.
Entire Agreement and Ambiguities
This Agreement constitute all the terms and conditions agreed upon between you and us and supersede any prior agreements in relation to the subject matter of this Agreement, whether written or oral. Any additional or different terms or conditions in relation to the subject matter of the Agreement in any written or oral communication from you to us are void. You represent that you have not accepted the Agreement in reliance on any oral or written representations made by us that are not contained in the Agreements. Please note, however, that other aspects of your use of the Service may be governed by additional agreements. That could include, for example, access to the Company or our Community for customer support, access to the Service as a result of a gift card, or free or discounted Trials. Those terms and conditions shall govern only with regard to the aspect of the Service to which they apply, and are distinct from and supplemental to these Agreements, and do not supersede these Agreements. To the extent that there is any conflict between those agreements and these Agreements, these Agreements shall control, except as otherwise provided in these Terms. Occasionally we may offer you the chance to participate in sweepstakes, contests, and surveys (“Special Promotions”) through the Service. Special Promotions may be governed by terms and conditions that are separate from these Terms. If the provisions of a Special Promotion’s terms and conditions conflict with these Terms, those separate terms and conditions shall prevail. For purposes of contract interpretation, including resolution of any ambiguity, the parties acknowledge that this Agreement was prepared jointly by their respective attorneys, and therefore the terms of the Agreement should not be strictly construed against either party.
Should any provision of the Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Terms, and the application of that provision shall be enforced to the extent permitted by law.
Choice of Law, Mandatory Arbitration and Venue
Unless otherwise required by a mandatory law, these Agreements are subject to the law of the State of California, without regard to choice or conflicts of law principles. Further, you and the Company agree to the exclusive jurisdiction of the California courts to resolve any dispute, claim or controversy that arises from, out of, or in connection with this Agreement, that is not applicable to the arbitration provision below. Arbitration Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be governed by and construed and enforced in accordance with the internal laws of the State of California (without reference to the conflict of laws rules or principles thereof), and the parties expressly consent that any dispute arising from or out of, or relating to this Agreement shall be resolved by arbitration in accordance with a recognized arbitration association in California. Unless otherwise agreed by you and the Company, the seat of arbitration shall be San Diego and may be conducted by video or teleconference. The number of arbitrators shall be one and the language of the arbitration shall be English. You agree that, by your continued use of the Website and Services, or your continued interaction with us (in correspondence and the like), you and the Company are each waiving the right to a trial by jury or to participate in a class action. YOU AND THE COMPANY 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.
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